/^i? 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


Digitized  by  the  Internet  Arciiive 

in  2007  witin  funding  from 

IVIicrosoft  Corporation 


http://www.arcliive.org/details/esteespleadingsp01esteiala 


ESTEE'S 
PLEADINGS,  PRACTICE 

AND  FORMS, 


ADAPTBD  TO 


ACTIONS  AND  SPECIAL  PROCEEDINGS 


V»DBB 


CODES  OF  CIVIL  PROCEDURE. 


BT 

MORRIS  M.  ESTEE, 

GUUABELUB  AT  LAW. 


THIRD    EDITION. 

BRVISKU,  KNLAKGKD  AND  KKWKITTBN  BT 

CARTER  P.  POMEROY, 

COUM8J1LOK  AX  LXW, 


IN  THREE   VOLUMES. 

VOL.  L 


SAN   FRANCISCO, 
BANCROFT-WHITNEY   CO., 
Law  P0BLISHBR8  ANu  Law  Booksellbrs.    . 
1886. 


Entered  according  to  Act  of  Congress,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  sixty-nine, 

Br  MORRIS  M.  ESTEE, 

In  the  Clerk's  Office  of  the  District  Coart  of  the  United  States,  for 

the  District  of  California. 

Entered  according  to  Act  of  Congress,  In  the  year  1879, 

Bt  a.  L.  BANCROFT  &  CO., 

In  the  Office  of  the  Librarian  of  Congresu,  at  Washington. 

Entered  according  to  Act  of  Congress,  in  the  year  1885, 

Bt  a.  L.  BANCROFT  &  CO., 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 

T 
Es?^3  p 


i^U 


Vi 

1 


PEEFACE  TO  THIRD  EDITIOJf. 


In  the  preparation  of  the  third  edition  of  this  standard  work, 
while  the  general  plan  of  the  two  former  editions  has  been  mainly 
followed,  certain  changes  have  been  made  in  arrangement  of 
the  several  subject-matters  discussed,  whenever  a  change  seemed 
desirable.  An  effort  has  also  been  made  to  enlarge  the  original 
scope  of  the  work,  and  enhance  its  usefulness,  by  incorporating 
it  in  a  large  number  of  new  forms,  adapted  to  the  needs  of  the 
profession  in  all  the  code  States  and  Territories.  The  forms  so 
added  have  been  carefully  prepared,  and  have  uniformly  been 
approved  by  the  appellate  courts.  Whenever  necessary  the  forms 
contained  in  the  previous  editions  have  been  revised  so  as  to 
harmonize  with  the  most  recent  decisions.  Many  new  and  re- 
cent authorities  have  also  been  examined  and  cited,  from  all 
the  States  which  have  adopted  the  reform  procedure ;  and  when- 
ever a  change  has  been  made  in  the  rules  and  doctrines  con- 
tained in  the  previous  editions,  either  by  judicial  decision 
or  legislative  enactment,  the  same  has  been  noted,  and  the 
text  modified  accordingly.  All  the  citations  have  been  care- 
fully compared  and  verified  by  reference  to  the  original  reports, 
and  it  is  confidently  hoped  that  they  will  be  found  substan- 
tially correct.  The  citations  have  been  placed  in  notes  at  the 
bottom  of  the  pages,  and  not  embodied  in  the  text  as  in  previous 
editions. 

C.  P.  P. 

San  Francisco,  October,  1884. 

(Hi) 


671503 


PREFACE  TO  SECOND  EDITION. 


'  The  preface  to  the  original  work  states  all  that  need  be  said  as 
to  its  plan  and  scope.  The  great  favor  the  work  has  met  with 
from  the  profession,  as  well  as  its  intrinsic  merits,  which  are  appar- 
ent without  reference  to  its  popularity,  prohibited  any  change  in 
its  plan  in  this  revision. 

Considerable  new  matter  has  been  introduced,  especially  in 
those  parts  relating  to  parties,  and  to  pleadings  in  general; 
while  new  notes  and  new  citations  of  authorities  have  been 
added  throughout  the  work  wherever  it  seemed  necessary  or 
desirable. 

The  original  citations  have  also  been  carefully  examined,  and 
the  errors  incident  to  a  new  work  corrected.  It  is  impracticable, 
in  a  work  of  this  character,  to  give  a  statement  of  the  point  de- 
cided in  each  case  referred  to ;  but  it  is  believed  that  each  citation 
will  be  found  to  sustain  directly,  or  illustrate,  the  point  or  subject 
to  which  it  is  cited. 

The  forms  have  also  been  carefully  examined  and,  so  far  as 
necessary,  corrected ;  and  in  the  second  and  third  volumes  will  be 
found  many  forms  not  contained  in  the  original  work. 

At  the  time  the  original  work  was  written,  the  Practice  Act  was 
in  force  in  California — since  that  time  the  Civil  Code  and  the  Code 
of  Civil  Procedure  have  been  adopted.  S3  far  as  these  codes  have 
changed  the  law  or  practice  in  that  State  upon  subjects  treated  of, 
such  changes  have  been  stated,  or  reference  made  thereto ;  and 
wherever  a  code  is  cited  without  giving  the  name  of  the  state,  the 
codes  of  California  are  intended. 

While  the  code  of  each  State  having  one,  differs  in  many  par- 
ticulars from  that  of  every  other,  yet  it  will  be  found  that  all  are 
based  upon  common  principles,  and  practitioners  in  other  States 
will  readily  adapt  this  work  to  the  peculiarities  of  their  own  code ; 
and  in  States  not  having  a  code,  the  profession  will  find  it  oi 

(V) 


Vl  PREFACE  TO  SECOND  EDITION. 

great  value,,  not  only  because  of  its  numerous  citations  upon  all 
leading  subjects,  but  because  it  has  now  become  necessary  for 
common-law  practitioners  to  become  familiar  with  code  pleading 
and  practice. 

In  a  work  covering  so  many  branches  of  the  law,  absolute  free- 
dom from  errors  should  not  be  expiected ;  but  it  is  hoped  and 
believed  that  its  utility  to  the  general  practitioner  will  more  than 
atone  for  its  errors. 

Bxs  Fbancisco,  July  1, 187& 


PREFACE  TO  FIRST  EDITION. 


In  the  preparation  of  this  work  my  object  has  been  to  pre- 
sent to  the  profession  the  chief  requisition  of  good  pleading, 
with  forms  adapted  to  the  modern  practice,  accompanied  by 
numerous  authorities  sustaining  them. 

With  this  subject  in  view,  I  have  commenced  at  the  first 
inquiry  made  by  the  practitioner,  in  bringing  or  defending  an 
action,  and  have  advanced  with  him  step  by  step  in  the  prose- 
cution or  defense  of  the  same ;  giving,  as  far  as  possible  within 
the  scope  of  this  worlc,  tlie  law  relative  to  the  p'eadlngs  and 
practice^  with  the  forms  necessary  for  use,  to  the  final  dispo- 
sition of  the  cause. 

Althougia  the  forms  given  are  specially  adapted  to  the  prac- 
tice in  California,  Nevada  and  Oregon,  and  the  Territories  on 
the  Pacific  slope,  yet,  with  rare  exceptions,  they  are  equally 
applicable  in  New  York  and  nearly  all  of  the  other  States  of 
the  Union. 

The  notes  under  the  forms  have  been  arranged  alphabetically, 
with  side  heads  to  each,  which  will  be  found  to  be  an  index  to 
their  contents,  and  a  majority  if  not  all  of  the  recent  decisions, 
not  only  of  the  supreme  courts  of  the  Pacific  States,  but  of  the 
various  courts  of  the  other  States  of  the  Union,  and  of  Eng- 
land, have  been  consulted,  and  brief  extracts  or  references  to 
them  appear  under  the  appropriate  headings. 

The  general  principles  discussed  in  the  first  part  of  this 
"work,  as  well  as  the  general  propositions  at  the  commencement 
of  the  leading  subjects,  Complaints,  Summons,  Change  of  Place 
of  Trial,  Demurrer,  Answer,  Notices,  Motions,  Statement,  New 
Trial,  Appeal,  etc.,  will,  it  is  believed,  be  a  guide  and  assist- 
ance at  each  stage  of  the  proceedings. 

The  forms  have  been  carefully  prepared,  and  in  general  will 
be  found  correct.     Many  of   them  have  been    tested    by    the 

(vii) 


Viil  PREFACE  TO  FIRST  EDITION. 

courts  of  last  resort,  and  their  correctness  sustained,  as  will  be 
seen  by  reference  to  the  authorities  under  each. 

In  submitting  this  book  to  the  profession  I  am  not  uncon- 
scious of  the  necessity  of  bespeaking  for  it  a  just,  if  not  a 
charitable  criticism;  and  I  trust  that  its  imperfections,  which 
are  doubtless  many,  will  not  seriously  impair  lis  usefulness. 

M.  M.  £. 


TABLE  OF  CONTENTS. 

VOLUME  I. 

PART    FIRST. 
GENERAL  PRINCIPLES. 


CHAPTER   L 

REMEDIES. 

2J  1,  2.    Remedies,  how  secured. 

2J  8,  4.     Actions. 

{I  5-25.  Special  proceedins^ 

1  26.      Provisional  remedies. 

CHAPTER,    n. 

JURISDICTION, 

II  27,  28.  In  general. 

{  29.  At  chambers. 

\  30.  Concurrent  jurisdiction. 

{{  81,  82.  Of  state  courU. 

{I  33-50.  California  courts. 

II  84-38.  Supreme  court. 

II  39-49.  Superior  court. 

2  50.  Justice's  court. 

CHAPTER    m. 

PLACE  OF  TRIAL. 

{  61.  In  general. 

I  52.  Where  subject-matter  is  situated. 

{  58.  Actions  against  counties. 

1  54.  Where  cause  of  action  arosa. 

2  55.  Where  defendant  resides. 
II 56-84.  Ch&Dge  of  place  of  triaL 


TABLE  OP  CONTENTS. 

Demand  for  change. 

Form  of  notice. 

StHtement  of  ground— Not  proper  county  from  situation  of 

subject-miitler. 
Not  county  where  cause  of  action  arose. 
Affidavit  on  groudd  of  non-residence. 
Affidavit  on  ground  of  prejudice. 
Affidavit  on  account  of  convenience  of  witnesses. 
Affidavit  on  account  of  disqualification  of  judge* 
Affidavit  resisting  motion  lor  change. 
Order  denying  motion. 
Order  granting  change. 
Order  transferring  cau^e  to  another  court. 
Notice  of  trial  of  transferred  action. 
Removal  of  causes  from  state  to  federal  courts. 
Special  cases. 
Suits  against  corporations  formed  under  laws  of  United 

States. 
Removable  causes. 

Removal  under  section  639  of  revised  statutes. 
Removal  under  act  of  1875. 
When  application  must  be  made. 
When  petition  must  be  filed. 
Entry  of  appearance. 

Petition  for  transfer  under  section  639,  subd.  1. 
The  same — On  ground  of  prejudice  or  local  influence. 
Affidavit  of  prejudice  or  local  influence. 
Bound  to  accompany  petition. 
Petition  on  ground  of  citizenship. 
Bond  to  accompany  petition. 
Notica  of  motion  for  removal. 
Order  to  show  cause. 
Order  for  removal. 
Writ  of  certiorari  to  state  court. 

CHAPTER    IV. 

PARTIES  TO  CIVIL  ACTIONS. 

2  124.  In  general. 

2  125.  In  legal  actions. 

5  126.  In  equitable  actions. 

5  127.  Equitable  doctrines  adopted  by  coda. 

I  128.  Cause  of  iaction,  meaning  o& 

CHAPTER    V. 

PARTIES  PLAINTIFF— REAL  PARTY  IN  INTEREST. 

5  180.    Who  is  real  party  in  interest. 

5  132.    When  promise  is  for  benefit  of  third  person.      ""  ' 


Form  1. 

2  59. 

2. 

2  61. 

8. 

2  63. 

4. 

2  64. 

6. 

2  65. 

6. 

2  68. 

7. 

2  71. 

8. 

2  75. 

9. 

2  82. 

10. 

2  8 ). 

11. 

2  89. 

12. 

2  93. 

18. 

2  94. 

il  95-123. 

2  98. 

2  97. 

2  98. 

22  99-102. 

2  103. 

2  104. 

2105. 

Form  14. 

2  106. 

15. 

2  107. 

16. 

2108. 

17. 

2109. 

18. 

2110. 

19. 

2111. 

20. 

2  113. 

2L 

2116. 

22. 

2117. 

28. 

2118. 

24. 

2123. 

rTABLE  OF  CONTENTS. 
CHAPTER    VI. 

PARTIES  PLAINTIFF— ACTIONS  FOUNDED  ON  CONTBACT, 

1  138.  Relation  to  contract  how  may  arise. 
J  134.  Joinder  of  plaintiffs,  generally. 

2  135.  Must  represent  entire  cause  of  action. 
{136.  Refusal  of  plaintifls  to  join. 

1  137.    Where  parties  are  numerous. 

2  138.    Common  interest. 

2  139.  Joint  tenants  and  tenants  in  common. 

2  140.  Joint  owners  of  chattels. 

2  141.  Executors  and  administrators. 

2  142.  Partners. 

2  143.  Mortgages  and  mechanic  liens. 

2  144.  Principal  and  agent. 

2  145.  Promissory  notes. 

2  146.  Quo  warranto, 

2  147.  Sheriffs. 

2  148,  State  or  United  States. 

2  149.  Sureties. 

CHAPTER    VH. 

PLAINTIFFS  IN  ACTIO^^S  ARISING  FROM  TORTS. 

2  150.  In  general. 

2  151.  For  injuries  to  real  property. 

2  152.  For  injuries  to  personal  property. 

2  153.  In  ejectment. 

2  154.  For  injuries  to  the  person. 

2  155.  Injuries  to  married  womon, 

2  156.  Injuries  to  child  or  servant. 

2  157.  Fur  seduction. 

CHAPTER    Vni. 

DEFENDANTS  IN  ACTIONS  LEGAL  AND  EQUITABLE. 

2  158.  Defendnnts  jointly  liable. 

2  159.  Annulling  patent  to  land. 

2  160.  Against  assessors. 

2161.  Breach  of  contract. 

2  162.  Executors  and  administrators. 

2  163.  Foreclosure  suits. 

2  164.  Fraud. 

2  165.  Ejectment. 

2  166.  Married  women. 

2  167.  Infanta. 

2  168.  Infringement  of  patent 

2  169,  Injunction. 

2  170.  Injuries  caused  by  negligence. 

2  171.  Legacy  charged  on  land. 

2  172.  Partners. 


Xii  TABLE  OP  CONTENTS, 

« 

{  178.  Principal  and  agent. 

1  174.  Trespass. 
1 175  Trustees. 

2  176.  Persons  severally  liable  on  same  obligation. 


PART  SECOND. 
AISTALYSIS  OF  PLEADINGS. 


CHAPTER   I. 

PLEADINGS  IN  GENERAL. 

J  177.  Definitions. 

{  178.  Object  of  pleading— The  issue. 

2  179.  Forms  of  action  abolished. 

2  180.  Legal  and  equitable  rights  preserved. 

2  181.  Legal  and  equitable  relief  granted  in  same  action. 

2  182.  Of  what  pleadings  consist. 

2  183.  Distinction  between  pleadings  and  the  action. 

2  184.  Facta  only  to  be  stated. 

2  185.  Conclusions  of  law  not  to  be  alleged. 

2  186.  Anticipation  of  defense. 

2  187.  Facts  independent  of  cause  of  action. 

2  188.  Implications  and  presumptions  of  law. 

^l  189,  190.  Material  averments. 

^  191.  Immaterial,  irrelevant,  and  redundant  matter. 

g  192.  What  fact  should  be  stated. 

I  193.  "What  should  be  omitted. 

I  194.  Mode  of  stating  facts. 

I  195.  Must  be  stated  logically. 

{  196.  Must  be  stated  by  direct  averment. 

{  197.  In  ordinary  and  concise  language. 

I  198.  With  sufficient  certainty. 

J  199.  Pleadings  how  construed. 

§  200.  Verified  pleadings. 

12  201-204.  Admissions  in  pleadings. 

g  202.  By  demurrer  and  answer. 

1  203.  By  want  of  verification. 
{204.  Effect  of  admissions. 

2  205.  Variance  and  delects. 

CHAPTER    n. 

FORMAL  PARTS  OP  PLEADINGS. 

{  206.  Of  what  formal  parts  consist. 

Form  25.    {  207.  Formal  parts  of  complaint — Title  of  canso. 


TABLE  OF  CONTENTS.  xUi 

Where  some  partieg  are  unknown. 

By  and  against  corporations. 

By  state  on  the  relation  of  individual. 

By  guardian  ad  litem. 

By  assignee  for  creditors. 

By  and  against  national  banks. 

By  an  oflicer  of  the  state. 

Title  and  commencement. 

By  one  suing  for  himself  and  others. 

Conclusion  of  complaint. 

Form  of  complaint  complete. 

Clerk's  certificate  to  copy  of  complaint 

Amended  complaint — Commencement. 

Defendant's  pleadings — Commencement  of  demurrer. 

Answer. 

Commencement  by  defendant  sued  by  wrong  name* 

By  an  infant. 

By  an  insane  person. 

By  husband  and  wife. 

Separate  answer  of  defendant. 

Petitions — To  the  court. 

Petition  to  a  judge. 

Caption  in  probate  proceedings — Decedent's  estate. 

Minor's  estate. 

Insane  person's  estate. 

Caption  in  insolvency  proceedings. 

Caption  on  habeas  corpus. 

Caption  on  disbarment  of  attorney. 

Caption  of  papers  used  in  other  courts. 

Caption  for  justices'  courts. 

Order  of  court  in  an  action. 

Caption,  commencement,  and  conclusion  of  affiJavitfl. 

Certificate  of  clerk  to  aflSdavit. 

Jurat  when  deponent  is  blind  or  illiterate. 

Jurat  when  deponent  is  a  foreigner. 

CHAPTER    III. 

VERIFICATION  OF  PLEADINGS. 

5  278.    Provisions  of  codes. 
279-283.     Construction  of  statute. 

Verification  by  sole  plaintiff  or  defendant. 
On  information  and  belief. 
By  one  of  several  plaintiffs  or  defendants. 
By  two  parties,  severally. 
By  officer  of  corporation. 
By  attorney  or  ai^ent  knowing  facts. 
By  agent  when  party  is  absent. 
When  absent  plaintiff  is  corporation. 
69.     {  801.    Verification  of  petition. 


Form  28. 

2  217. 

27. 

3  219. 

28. 

§221. 

29. 

3  222. 

80. 

|223. 

8L 

{224. 

82. 

J  226. 

83. 

2  228. 

84. 

|230. 

86. 

2  281. 

86. 

2  233. 

87. 

2  234. 

88. 

2  235. 

89. 

2  236. 

40. 

2  238. 

41. 

2  246. 

42. 

2  247. 

43. 

2  248. 

44. 

2  249. 

46. 

2  250. 

46. 

2  251. 

47. 

2  252. 

48. 

2  253. 

49. 

2  254. 

50. 

2  255. 

51. 

2  256. 

52. 

2  257. 

53. 

2  258. 

54. 

2  259. 

55. 

2  260. 

56. 

2  261. 

57. 

2  262. 

58. 

2  275. 

59. 

2  276. 

60. 

2  277. 

61. 

2  284. 

62. 

2  285. 

63. 

2  287. 

M. 

2  289. 

65. 

2  290. 

66. 

2  293, 

67. 

2  296. 

68. 

3  800. 

ziv 


TABLE  OF  CONTENTS. 


PART  THIRD. 
PLEADmGS  OF  PLAINTIFF. 


;S03. 
(2  805-310. 

1  306. 
i  807. 
$303. 
{809. 

2  810. 
II  811-331. 

2  312. 
2  313. 
{314. 
{315. 
2  316. 
2  317. 
2  318. 
2  819. 
2  320. 
2  321. 
2  822. 
2  328. 
2824. 
2  825. 
2  326. 
2  827. 
2  828. 
{]  829.  330. 
2  881. 
2  882. 


CHAPTER    I. 

COMPLAINTS  IN  GENERAL. 

First  subdivision  of  complaint. 

Character  and  capacity  averred. 

Action  by  agent. 

Action  by  assignee. 

Action  by  conapany  or  partnership. 

Action  by  corporation. 

Permission  to  sue. 

Second  subdivision — Statement  of  cause  of  actiuu. 

What  facts  must  be  stated. 

Allegations  on  information  and  beliof. 

Joinder  of  causes  of  action. 

Causes  of  action  which  can  not  be  joined. 

Splitting  demands. 

Actions  for  debt. 

On  contract,  for  breach  of. 

Pleading  contract. 

Averment  of  promise. 

Consideration,  when  must  be  alleged. 

Performance  of  contracts. 

Non-performance. 

Concurrent  acts. 

Breach  of  contract. 

Special  damages. 

Negligence,  how  pleaded. 

Judgments,  how  pleaded. 

Statutes,  bow  pleaded. 

Statute  of  limitations,  how  pleaded. 

Third  subdivision — Demand  for  relief. 


FORMS  OF  COMPLAmT. 

SUBDIVISION  FIRST. 

BT  ASD  ▲OAQTST    PARTICULAR    PERSONS,    INDIVIDUALLY,    AND   IN  RSPKESXK- 
TATXTE  CHABAGTSR   AND   OFFICIAL   CAPACITY, 

CHAPTER    I. 

ASSIGNEES  AND  DEVISEES. 

Form  70.    2  883.    By  the  asoignee  of  a  claim. 

2  884.    What  chuses  in  action  are  assignable. 


TABLE  OF  CONTENTS. 


XV 


5335. 

Assignment  of  claims  arising  from  torta. 

2  836. 

Assignments,  bow  made. 

§337. 

How  alleged. 

2  338. 

Averment  of  consideration  for. 

I  339. 

Assignment  of  accounts. 

2  340. 

Of  bonds,  notes,  etc. 

2  341. 

By  corporation. 

2  342. 

Of  debts. 

2  343. 

Personal  property  not  in  possession* 

2  344. 

Of  lease. 

2  345. 

Of  mortgage. 

2  346. 

Of  insurance  policy. 

2  347. 

Of  judgments. 

2  348. 

Of  stock  of  corporation. 

2  349. 

Effect  of  assignment. 

Form  71. 

2  350. 

By  assignee— where  plaintiff  is  trustee. 

22  351-357. 

Who  are  trustees  and  when  may  sue. 

Form  72. 

11  358,  359. 

Where  plaintiff  is  a  devisee. 

78. 

2  360. 

By  assignee  for  benefit  of  creditors. 

CHAPTER    n. 

JOINT  TENANTS  AND  TENANTS  IN  COMMON. 
Form  74.  2  ^^^    ^J  joint  tenant  and  tenants  in  common. 


Form  75. 

2  869. 

76. 

2  372. 

77. 

2  382. 

78. 

2  384. 

79. 

2  387. 

80. 

2  391. 

81. 

2  394. 

82. 

2  395. 

88. 

2  396. 

84. 

2  404. 

8fi. 

2408. 

88. 

2  409. 

87. 

2  413. 

88. 

2  414. 

EsTKB,  Vol.  1—6 

CHAPTER    HI. 

CORPORATIONS. 

By  a  foreign  corporation. 

By  and  agtiinst  foreign  corporation. 

Against  corporation  formed  under  act  in  relation  to 

roads  and  highwaj-s. 
On  stock  assessments. 
On  stock  subscription. 
On  subscription  for  a  public  object. 
Against  a  municipal  corporation. 
Against  county  for  guarding  jail. 
By  a  county. 
Against  trustees  of  dissolved  corporation,  fbr  an  ac« 

counting. 
Against  directors  of  insurance  company  for  unlawful 

acts. 
Agninst  directors  of  a  corporation  for  unlawfully 

deelKriiig  dividends,  < t'. 
IndividuHl  creditor  Hgninst  individual  stockholder. 
The  same — Shorter  form. 


xyi 


TABLE  OP  CONTENTS. 


CHAPTER    IV. 

EXECUTORS  AND  ADMINISTRATORS. 

Porm  89.  i  419.  By  an  executor. 

90.  I  420.  By  an  administrator. 

91.  I  424.  By  executor  or  administrator  suing  in  his  own  rigbL 

92.  I  426.  Against  an  administrator  or  executor. 


CHAPTER    V. 

HUSBAND  AND  WIFE. 

Against  husband  for  necessaries  furnished  family. 
Against  husband  and  wife  for  goods  sold  for  her  separata 

estate. 
Against  husband  and  wife  for  goods  sold  to  the  wife  for 

her  sepnrate  estate. 
Against  husband  and  wife  on  note  of  wife  while  sole. 
By  a  married  woman. 
Against  a  married  woman,  as  sole  trader. 
Against  a  married  woman  on  contract. 

CHAPTER    VI. 

INFANTS. 


Form  100.    2  ^^^'    ^7  *'*  infant,  suing  by  general  guardian. 
101.    i  478.    By  an  infant,  suing  by  guardian  ad  litem, 

CHAPTER   VII. 


Form  93. 

2  487. 

94 

|441. 

95. 

|442. 

96. 

5  460. 

97. 

2  461. 

98. 

2  471. 

99. 

2  475. 

Form  102. 
103. 


2  492. 
2  497. 


INSANE  PERSONS. 

By  guardian  of  insane  person. 
Against  guardian  of  the  same. 

CHAPTER    Vni. 

PARTNERS. 

Title  and  commencement  of  complaint  by  partnenk 
For  dissolution  and  accounting. 
For  accounting  after  dissolution. 
Against  pwrtners — Averring  partnership. 
By  a  surviving  partner. 

CHAPTER    IX, 

PUBLIC  OFFICERS. 

Form  109.  2  527.  By  or  against  public  officers. 

110.  2  f*^8.  By  sheriff  suing  in  aid  of  attachment. 

111.  2  ^^^'  Agulnst  sheriff  for  not  executing  process. 

112.  2  546.  Against  sheriff  for  neglecting  to  return  execution. 


Form  104. 

2  504. 

105. 

2  515. 

106. 

2  616. 

107. 

2  517. 

108. 

2  520. 

TABLE  OF  CONTENTS. 


xvii 


Porm  118. 

5  546. 

114. 

2  651. 

115. 

2  552. 

116. 

j56l. 

117. 

5  562. 

118. 

5  663. 

119. 

5  568. 

120. 

5  569. 

The  same — Under  California  statute. 

Against  sheriff,  for  neglecting  to  pay  over  money* 

The  Same — Under  California  statute. 

Against  sheriff  for  false  return. 

The  same — Allegation  for  not  levying; 

The  same — Another  form  of  allegatioib 

For  seizing  a  vesseL 

For  aa  escape. 


CHAPTER    X. 

RECEIVER. 

Form  121.  5  ^81.  By  a  receiver  appointed  pending  litigation. 

122.  5  5^2.  Motion  for  appointment  of  receiver. 

123.  5  598.  By  a  receiver  appointed  in  supplementary  proceedingfc 

124.  5  ^^^'  The  same — Setting  out  proceedings  at  length. 

125.  5  ^'02.  By  receiver  of  a  dissolved  corporation. 

126.  5^04.  By  receiver  of  mutualinsurauce  company,  on  premium. 

note. 


SUBDIVISION  SECOND. 


IN  ACTIOKS  VOB  DEBT. 


CHAPTER    I. 

ACCOUNTS. 

Form  127.  {  805.  For  money  due  on  an  account. 

128.  5  ^06.  The  Same — Common  count. 

129.  5  61  ^«  By  *"  assignee  on  an  account. 

130.  5  **^6*  ^^  *"  account  staled. 

131.  5  622.  For  a  general  balance  of  account. 

132.  5  623.  Upon  an  account  for  services. 

133.  5  624.  The  same — Common  count. 
184.  5  627.  The  same— By  an  architect. 
136.  5  628.  The  same — Common  count. 

136.  5  629.  The  same — By  a  broker,  for  commissions. 

137.  5  630.  The  same — Common  count. 

138.  5  631.  By  carrier,  against  consignor  for  freight. 

139.  5  632.  The  same — Common  counU 

140.  5  633.  The  same — Against  consignee. 

141.  5  634.  The  same — Common  count. 
142-  5  636.  By  editor,  for  services. 

143.  5  637.  The  same — Common  count. 

144.  5  639.  By  author,  for  editing  book. 

146.  5  640.  The  same — Common  count. 

14ti.  5  642.  For  services  and  materials  furnished. 

147.  5  643.  The  saim^ — Common  count. 

148.  5  641.  For  tuition  bills. 

149.  5  645.  The  same—Common  count. 


Form  153. 

2  665. 

154. 

2  670. 

155. 

§673. 

156. 

2H77. 

157. 

§678. 

158. 

{682. 

XVia  TABLE  OP  CONTENTS. 

CHAPTER    II. 

ON  AWARDS. 

Fonn  150.    J  R48.    On  an  award  of  arbitrators — Common  fomu 

151.  \  660.    On  an  award  of  an  umpire. 

152.  {  661.    Allegation  of  enlargement  of  timflb 

CHAPTER    III. 

ON  EXPRESS  PROMISES. . 

On  an  express  promise  in  consideration  of  a  precedent 

debt. 
Upon  compromise  of  an  action. 
On  promise  of  third  person  to  pay  money  to  plaintiff. 
On  promise  to  pay  tor  surrender  of  lease. 
For  the  purchase  money  of  land  conveyed. 
Allegation  of  new  promise. 

CHAPTER    IV. 

GOODS  SOLD  AND  DELIVERED. 

For  goods  sold  and  delivered. 

The  same — Common  count. 

The  same — Short  form. 

For  goods  sold  and  delivered  at  fixed  price. 

The  same — For  a  reasonable  price. 

The  same — On  specified  price  and  credit. 

By  assignee,  fur  stock,  fixtures,  and  good  will. 

By  firm  with  dormant  partner — Price  a;;reed  upon. 

For  goods  delivered  to  third  person — Price  fixed. 

For  goods  sold,  but  not  delivered — Price  fixed. 

CHAPTER   V. 

ON  GUARANTIES. 

Form  169.    J  713.    Against  principal  and  sureties,  on  contract  for  work. 

170.  §719.    On  agreement  to  be  answerable  for  price  of  goods  sold. 

171.  §  724.    Against  guarantor  of  mortgage,  for  deficiency  after  fore- 

closure. 

172.  g  731.    On  a  guaranty  of  a  precedent  debt. 
178.    I  782.    Against  sureties  for  payment  of  rent. 

CHAPTER    VI. 

INSURANCE. 

On  fire  policy — By  the  insured. 

Where  piaintitf  purchased  the  property  after  insurance. 

The  same — Another  form. 

The  same — Loss  payable  to  mortgagee. 

Allegation  of  removaL 


'orm  159. 

?685. 

160. 

§686. 

161. 

§  692. 

162. 

§695. 

163. 

§700. 

164. 

§704. 

165. 

§706. 

166. 

§708. 

167. 

§709. 

168. 

§712. 

174. 

§785w 

175. 

§736. 

176. 

§737. 

177. 

§  738. 

178. 

§749. 

Fonn  179. 

2  750. 

180. 

5753. 

181. 

{758. 

182. 

2  759. 

183. 

2  7fil. 

184. 

2  762. 

185. 

2  773. 

186. 

2  775. 

187. 

2  776. 

188. 

2  777. 

189. 

2  778. 

190. 

2  779. 

TABLE  OF  CONTENTS.  XEZ 

On  agreement  to  insure — Policy  not  delivered* 
By  executor  on  life  policy. 
By  a  wife,  partner,  or  creditor  of  insured. 
By  assignee  in  trust  for  wife  of  insured. 
Accidental  insurance — Insured  against  insuren 
Marine  insurance — On  an  open  policy. 
On  cargo  lost  by  fire — Valued  policy. 
Valued  policy — Allegation  oL 
On  freight — Valued  policy. 
Averment  by  loss  by  collision. 
Averment  of  waiver  of  a  condition. 
For  a  partial  loss  and  contribution. 
191.    2  7^    Allegation  for  a  particular  average  loss. 

CHAPTER   Vn. 

ON  JUDGMENTS. 

Form  192.  2  '^S*«  General  form. 

193.  2  794.  On  judgment  by  leave  of  court. 

194.  2  "9^*  T^®  same — By  an  assignee. 

195.  2  798.  On  foreign  judgment  of  court  of  general  jurisdiction. 

196.  2^^^*  On  foreign  judgment  of  inferior  court. 

CHAPTER    VIH. 

ON  LIABILITIES  CREATED  BY  STATUTE. 

Form  197.  2  ^^2.  Penalties  under  statute — General  form. 

198.  2  ^^'  •^o'"  selling  liquor  without  a  license. 

199.  2  ^^^*  Against  a  witness,  for  disobeying  subpoena. 

200.  2  ^^^*  ^^'^  violation  of  ordinance  of  supervisors. 

CHAPTER  IX. 

FOR  MONEY  HAD  AND  RECEIVED  TO  PLAINTIFFS'  USB. 

Common  form. 

Against  attorney  or  agent,  with  demand. 
The  same — Another  form. 

For  money  received  by  defendant  through  mistake. 
For  price  of  goods  sold  by  a  factor. 
Against  factor,  for  price  of  goods  sold  on  credit. 
"    207.    2  ^^    Against  broker,  for  proceeds  of  note  discounted. 

CHAPTER    X. 

FOR  MONEY  LENT. 

Form  208.  2  ^^^-  I^e^der  against  borrower. 

209.  2  863.  The  same — No  time  for  payment  agreed  on, 

210.  ^SGi.  By  assiajnee  of  lender,  against  borrower. 

211.  2  ^^*  P«rtuerB,  lenders,  against  partners,  borrowers. 


Form  201. 

2  836. 

202. 

2  842. 

203. 

2  847. 

204. 

2  849. 

205. 

2852. 

206. 

2  855. 

Form  212. 

2  866. 

213. 

2  869. 

214. 

§871. 

215. 

§873. 

216. 

§875. 

217. 

§877. 

218. 

§881. 

219. 

§884. 

220. 

§887. 

221. 

§889. 

222. 

§891. 

223. 

§893. 

TABLE  OP  CONTENTS. 

CHAPTER    XI. 

FOR  MONEY  PAID. 

For  money  paid  to  a  third  party  at  defendant's  reqnost. 
By  one  huviiig  paid  the  debt  of  another,  to  be  repaid  on 

demand. 
To  be  repaid  on  a  specified  day. 
For  repayment  of  money  on  a  reversed  judgment 
By  broker,  for  money  advanced  on  account  of  his  pri  nclpal 
For  repayment  of  dt-posit  on  purchase  of  real  estate. 
To  recover  back  a  wager. 

By  landlord,  against  tenant,  for  repayment  of  tax. 
Against  carrier,  to  recover  money  paid  in  excess  for  freight. 
To  recover  back  freight  on  failure  of  carriage. 
By  surety,  against  principal. 
For  repayment  of  advances  on  services. 

CHAPTER    XII. 

FOR  SERVICES,  WORK  AND  LABOB. 

Form  224.  §  896.  For  services,  at  a  fixed  price, 

225.  §  904.  At  a  reasonable  price. 

226.  §  90a  By  carriers,  for  freight 

227.  §  909.  For  passage  money. 

228.  §  910.  By  parent,  for  services  of  minor  son. 

229.  §912.  For  services  and  materials  at  a  fixed  price. 

230.  §  914.  By  an  attorney,  for  services  and  disbursements. 

231.  §  917.  For  services  and  materials  at  a  reasonable  price. 

232.  §  918.  By  advertising  agent,  for  services  and  disbursement!. 

233.  §  919.  By  publisher  and  proprietor,  for  advertising. 
2o'.  §920.  For  stabling  horses. 

235,    I  921.    Special  contract  completely  fulfilled. 

286.    §  924.    The  same — Contract  fulfilled  by  an  assignee. 

CHAPTER    XIII. 

FOR  USE  AND  OCCUPATION. 

Form  237.    §  926.    On  an  express  contract. 

For  rent  reserved  in  a  lease. 

For  deficiency  after  a  re-entry. 

Against  assignee  of  lessee. 

Grantee  of  reversion  against  lessee. 

Allegation  of  assignment  of  lease. 

Allegation  by  heir  of  reversioner. 

Assignee  of  devisee  against  assignee  of  leasee^ 

For  use  and  occupation  of  pasture. 

On  an  implied  contract. 

For  lodging  and  board. 

Allegation  for  lodging. 

For  the  hire  of  personal  property. 

Of  piano  forte,  with  damages  for  not  returning. 

Of  furniture,  with  damages  for  ill-use. 


238. 

§929. 

239. 

§935. 

240. 

§938. 

241. 

§942. 

242. 

§943. 

243. 

§944. 

244. 

§946. 

245. 

§948. 

246. 

§951. 

247. 

§959. 

248. 

§960. 

249. 

§961. 

250, 

§868. 

261. 

§964. 

TABLE  OF  CONTENTS.  xxi 

SUBDIVISION  THIRD. 

VFOK  WBITTBN  INSTBUMKNTS  FOR  THE  PAYMBNT  OF  MONEY  OKLT. 

CHAPTER  I. 

ON  NEGOTIABLE  PAPER,  BONDS,  ETa 

Form  252.  2  ^^^-  Against  maker. 

253.  §9*^6.  On  a  bond  for  the  payment  of  money  only. 

254.  I  990,  The  same— Pleading  its  legal  effect. 

255.  §  991.  By  surviving  obligee  on  joint  bond. 

CHAPTER    n. 

ON  BILLS  OF  EXCHANGE. 
Foreign  bills — Payee  against  drawer  for  non-acceptance. 
Payee  against  acceptor. 

Inland  bills — Drawer  against  acceptor,  for  non-payment. 
On  bill  not  negotiated. 
Bill  returned  and  taken  up. 
Acceptor  without  funds  against  drawer. 
The  same — Copartnership  firm  against  copnrtnership  firm. 
Pajee  against  drawer  for  non-acceptance. 
Allegation  setting  out  copy  of  bill. 
Allegation  of  demand  and  notice  excused. 
Allegation  of  excuse  fi)r  non-presentment. 
The  same — Drawee  not  found. 
The  same — Bill  payable  at  specific  date. 
Partners  payees,  against  partners  acceptors. 
Payee  against  acceptor — Short  form. 
Allegation  setting  out  copy  of  bill. 
Pleading  the  legal  effect. 
Acceptance  varying  as  to  time  from  the  bill. 
Where  drawer  is  also  acceptor  on  bill  drawn  on  himselfi 
By  assignee  of  bill  payable  out  of  a  particular  fund. 
Payee  against  drawer  and  acceptor. 
On  a  bill  accepted  for  honor. 
By  indorsee — First  indorsee  against  acceptor. 
Against  first  indorser. 
A^gainst  drawer  and  indorser. 
Against  all  prior  parties. 
Subsequent  indorsee  against  acceptor. 
Against  first  indorser. 
Against  intermediate  indorser. 
Against  last  indorser. 
Against  all  prior  parties. 
By  a  bank  in  its  corporate  name. 
Checks — Payee  against  drawer. 
Indorsee  or  bearer  against  drawer. 
Allegation  of  excuse  for  failure  to  give  notice. 
The  same — From  insolvency  of  drawee. 
Against  drawer  and  indorser. 
Against  bank  drawee,  having  certified; 


Form  256. 

§994. 

257. 

§  1007. 

258. 

2  1011. 

259. 

§  1019. 

260. 

i  1020. 

261. 

§  1023. 

262. 

§  1024. 

263. 

§  1025. 

264. 

I  1026. 

265. 

§  1027. 

266. 

I  1028. 

267. 

I  1029. 

268. 

I  10:52. 

269. 

2  1083. 

270. 

§  1042. 

271. 

I  1043. 

272. 

I  1046. 

273. 

§  105L 

274. 

§  1052. 

275. 

§  1053. 

276. 

i  10)5. 

277. 

I  10o6. 

278. 

I  10)9. 

279. 

I  lOfiO. 

280. 

§  1061. 

281. 

I  1063. 

282. 

2  1054. 

283. 

§  1065. 

284. 

I  1016, 

285. 

§  1067. 

286. 

I  1068. 

287. 

I  10)9. 

288. 

g  1070. 

289. 

g  1080. 

290. 

2  1081. 

291. 

§  1083. 

292. 

§  1085. 

293. 

Z  1086. 

xxii  TABLE  OF  CONTENTS. 

CHAPTER    III. 
ON  PROMISSORY  NOTES  AND  CERTIFICATES  OP  DEPOSIT. 

Maker  of  accommodation  note  having  paid  it. 

Joint  maker  of  a  note  against  the  other  for  contrI> 
bution. 

Indorser  of  note  having  pnid  a  park 

Payee  against  maker. 

On  two  notes,  one  partly  paid. 

On  several  notes  given  as  security. 

On  a  note  signed  by  an  agent. 

On  a  note  made  by  partners. 

The  same — Averring  partnership. 

By  payee  as  receiver  against  partnershipi 

Sight  note,  allegation  of. 

On  a  note  wrongly  dated. 

Domestic  corporation  against  a  foreign  corporation. 

Against  surviving  maker. 

Against  maker  and  indorser. 

Indorser — First  indorsee  against  maker. 

Against  first  indorser. 

Allegation  of  notice  to  indorser  waived. 

Allrgation  of  excuse  for  non-presentment. 

Against  maker  and  first  indorser. 

Against  maker,  on  note  drawn  to  maker's  order. 

Subsequent  indorsee  against  maker* 

Against  first  indorser. 

Against  intermediate  indorser. 

Against  immediate  indorser. 

Against  all  prior  parties. 

Transfers  not  by  indorsement — By  assignee. 

By  treasurer  of  unincorporated  company,  on  note  pay- 
able to  former  treasurer. 

On  a  note  payable  on  a  contingency. 

On  a  note  payable  in  chattels. 

On  guaranties — Against  maker  and  guarantor  of  note. 


SUBDIVISION  FOURTH. 

rOK  SAMAQES  OK  BREACH  OF  COKTBACT. 

CHAPTER    I. 

ON  BUILDERS'  CONTRACTS. 

Porm  825.    {  1212.    By  contractor,  on  special  contract,  modified,  with  claim 
for  extra  work. 
826.    2  1225.    Against  builder  for  defective  workmanship. 
•£27.    I  1226.    For  not  completing — Special  damages  for  loss  of  rent. 


Form  294. 

5  1089. 

295. 

I  1096. 

298. 

2  1097. 

297. 

2  1100. 

298. 

2  1130. 

299. 

I  1132. 

800. 

I  1133. 

80'i. 

1  1135. 

802. 

I  1137. 

803. 

i  1138. 

804. 

§  1141. 

805. 

§  1142. 

806. 

2  1143. 

«07. 

i  1147. 

808. 

i  1149. 

809. 

21150. 

810. 

2  1154. 

811. 

21166. 

812. 

21167. 

818. 

2  1170. 

814. 

2  1174. 

815. 

2  1176. 

816. 

2  1178. 

817. 

2  1179. 

818. 

21180. 

819. 

21181. 

820. 

2  1182. 

821. 

2  1188. 

822. 

2  1189. 

823. 

21191. 

824. 

2  1198. 

TABLE  OF  CONTENTS. 


zziii 


CHAPTER    II. 

ON  CHARTER  PARTIES. 
Form  828.    J  1229.    Owner  against  freighter,  for  not  loading. 
829.     2  1232.     Allegation  for  demurrage. 

880.    2  1247.    Charterer  against  owner,  for  deviation  from  contract  and 
abandonment  of  voyage. 

831.  2  1251.     Ship  owner  against  charterer,  for  freight. 

832.  2  1252.    Allegation  against  assignee  of  cargo. 

CHAPTER    III. 

ON  COVENANTS. 
Warranty  of  title  to  real  property. 
Eviction,  allegation  of. 
Special  damages,  allegation  of. 
Breach  of  warranty  of  title — Another  form. 
By  assignee  of  grantee,  against  previous  grantor. 
By  heirs  of  covenantee,  against  previous  grantor. 
By  devisee  of  covenantee,  against  the  same. 
Warranty  as  to  quantity. 

On  covenant  against  incumbrances  on  real  property. 
The  same — Where  deed  expressed  specific  incumbrance. 
On  a  covenant  of  seisin  or  of  power  to  convey. 
Grantee's  covenant  to  build. 

On  covenant  against  nuisances — Orantor  against  grantee. 
On  a  continuing  covenant  to  maintain  a  fence. 
Lessor  against  lessee,  on  covenant  to  keep  premises  in 

repair. 
Lessee  against  lessor,  for  not  keeping  premises  in  repair. 
For  not  completing  building  according  to  agreement. 
For  breach  of  covenant  of  quiet  enjoyment. 

CHAPTER    IV. 

ON  CONTRACTS  OF  EMPLOYMENT. 
For  breach  of  contract  to  employ. 
Where  employment  never  took  effect. 
For  breach  of  contract  to  serve. 
By  the  master,  against  father  of  apprentice. 
By  the  apprentice  against  the  master. 
For  breach  of  contract  to  manufrtcture  goods. 
For  refusal  to  accept  manufactured  goods. 
On  promise  to  manufacture  raw  material  into  merchant- 
able goods. 

CHAPTER    V. 

ON  INDEMNITY. 

Form  850.     2  1337.    By  retiring  partner,  on  remaining  partner's  promise  to 
indemnify  against  damage. 
860.    2  1854.    Against  sureties  on  partner's  bond  of  indemnity. 


Form  333. 

2  1256. 

834. 

2  1253. 

886. 

2  1264. 

836. 

2  1205. 

887. 

2  1266. 

888. 

2  1267. 

839. 

2  1268. 

840. 

2  1269. 

841. 

2  1270. 

842. 

2  1280. 

848. 

2  1283. 

844. 

2 1288. 

845. 

2  1293. 

846. 

2  1296. 

S47. 

2  1297. 

848. 

2  1307. 

849. 

2  1311. 

850. 

2  1812. 

Form  351. 

2  1317. 

862. 

2  1323. 

858. 

2  1324. 

854. 

2  1828. 

855. 

2  1382. 

856. 

2  1334. 

857. 

2  1335. 

858. 

2  1336. 

xxiv  TABLE  OP  CONTENTS. 

Ponn  861.    1 1357.    Surety  against  principal,  on  indemnity  against  liability 
862.    2  1360.    Sub-tenant  against  immediate  lessor. 
868.    2  1363.     On  agreement  of  indemnity  to  plaintiff,  for  defense  of 
action  for  surrender  of  property. 

CHAPTER    VI. 

ON  BREACH  OF  PROMISE  OF  MARRIAGE. 

Form  864.    2  1365.    For  refusal  to  marry. 

865.    2  1371.    For  marriage  with  another. 

CHAPTER   VII. 

ON  SALE  AND  DELIVERY  OF  CHATTELS. 

Seller  against  purchaser,  refusing  to  receive  and  pay  for 
goods. 

The  same — On  contract  made  by  broker. 

The  same — On  promise  to  pay  by  good  bill  of  exchange. 

The  same — For  not  returning  goods  or  paying  for  them 
in  a  reasonable  time. 

The  same — For  not  giving  security  according  to  con- 
ditions of  sale  at  auction. 

For  a  deficiency  on  a  resale. 

By  manufacturer,  for  goods  made  at  defendant's  request 
and  not  accepted. 

For  breach  of  promise,  by  purchaser  of  good  will,  not  to 
carry  on  rival  trade. 

Buyer  against  seller  for  not  delivering  goods  sold. 

For  not  delivering  within  a  specified  time. 

Allegation  where  neither  time  nor  place  of  delivery  is 
fixed. 

Allegation  where  both  time  and  place  were  fixed. 

Allegation  where  time  of  delivery  was  not  fixed. 

Allegation  of  part  payment. 

Against  seller  of  stock,  for  non-delivery. 

CHAPTER    Vin. 

FOR  SALE  OF  REAL  PROPERTY. 

Purchaser  against  vendor,  for  breach  of  agreement  to 
convey. 

Averment  of  excuse  for  non-performance. 

The  same — For  damage  for  not  executing  conveyance. 

Vendor  against  purchaser,  for  breach  of  agreement  to 
purchase. 

Averment  of  excuse  for  non-performance. 

The  same — For  not  fulfilling  agreement,  and  for  de- 
ficiency on  resale. 

Vendor  against  executor  of  purchaser. 

Vendor  against  purchaser,  for  real  property  contracted 
to  be  sold  but  not  conveyed. 


Form  866. 

2  1375. 

867. 

2  1391. 

868. 

2  1393. 

869. 

21394. 

870. 

2  1396. 

871. 

2  1396. 

872. 

2  140L 

878. 

2  1407. 

874. 

2  1410. 

875. 

2  1422. 

876. 

2  1423. 

877. 

2  1424. 

878. 

2  1425. 

879. 

2  1431. 

880. 

21434. 

881. 

2  1436. 

882. 

2  1446. 

883. 

2  1417. 

884. 

2 1448. 

886. 

2  1452. 

886. 

2  1453. 

887. 

2  1455. 

888. 

2  1456. 

TABLE  OF  CONTENTS. 


XXV 


CHAPTER    IX. 

UPON  UNDERTAKINGS,  BONDS,  ETC. 

Fonn  889.  2  1458.  Short  form — On  undertakings  given  in  actions. 

890.  51471.  For  costs  of  appeal, 

891.  2  1484.  For  costs  and  datnaujes  on  an  arresL 

892.  2  1485.  On  release  from  arrest 

898.  2  1492.  For  costs  and  damages  on  attachment, 

894.  I  1495.  To  procure  discharge  of  an  attachment. 

895.  g  1499.  In  claim  and  delivery. 

896.  I  1511.  In  injunction. 

897.  2  1519.  On  a  bond  or  undertaking,  condition  only  set  forth. 

898.  §  1524.  On  arbitration  bond — Refusal  to  comply  with  award. 

899.  2  1526.  For  revoking  arbitrator's  powers. 

400.  2  1527.  On  a  bond  for  faithful  accounting  of  an  agent. 

401.  I  1529.  For  fidelity  of  a  clerk. 

402.  2  1533.  On  an  official  bond. 

403.  \  1534.  Allegation  lor  sheriff's  neglect  to  levy. 

404.  2  1635.  For  neglect  to  sell  after  levy. 

405.  §  1536.  For  neglect  to  return. 

406.  I  1537.  Allegation  of  breach  in  treasurer's  bond. 

CHAPTER    X. 

ON  WARRANTY  OF  CHATTELS. 

"Warranty  of  title. 

Of  quality. 

Of  soundness. 

On  a  warranty  of  a  judgment. 

On  a  warranty  of  a  note. 

CHAPTER    XI. 

SEVERAL  CAUSES  OF  ACTION  UNITED. 
Form  412.    1 1598.    Causes  of  action  under  money  counts. 

SUBDIVISION  FIFTH. 

TOB  DAMAOBS  UPON  VTRONGHS. 

PART  FIRST— FOR  INJURIES  TO  THE  PERSON. 

CHAPTER    I. 

FOR  ASSAULT  AND  BATTERY. 

Form  418.  5  1620,  Common  form. 

414.  §  1633.  The  same— Short  form. 

415.  §  1634.  Assault  by  married  woman. 

416.  2  1635.  With  special  damages. 

417.  1 1636.  Against  corporation,  for  damages  caused  by  an  assault 

and  forcible  ejection  from  a  car. 


Form  407. 

gli   4. 

408, 

2  1577. 

409. 

§  1589. 

410. 

I  1596. 

411. 

1  1597. 

418.  2  1645.    Assault  and  false  imprisonment. 

419.  §  1648.    Fuller  form. 


xxvi  TABLE  OP  CONTENTS. 

CHAPTER    II. 

FOR  FALSE  IMPlilSONMENT!. 

Form  420.    g  1649.    Common  form. 

421.    I  1063.    The  same — Another  form. 

CHAPTER    III. 

LIBEL  AND  SLANDER. 

Form  422.  ^  1665.  For  libel,  the  words  being  libelous  in  themselves. 

423.  I  1684.  The  words  not  being  libelous  in  themselves. 

424.  \  1698.  By  an  attorney  at  law. 

425.  I  1699.  By  a  physician. 

426.  g  1700.  Charge  of  dishonesty,  etCn  in  business. 
I  1701.  By  corporation. 

427.  §  1702.  For  charge  of  crime,  words  not  libelous  on  their  face. 

428.  5  1703.  Accusing  plaintiff  of  perjury  in  his  answer  to  a  complaint. 

429.  2  1704.  For  composing  a  libel  not  directly  accusing  the  plaintiff 

of  perjury. 

480.  5  1705.  For  a  libel  not  directly  accusing  the  plaintiff  of  larceny. 

431.  §1706.  For  libel  by  signs. 

432.  2  1707.  For  slander,  the  words  being  actionable  in  themselves. 

433.  2  1734.  Words  spoken  in  a  foreign  language. 

434.  §  1736.  The  words  not  being  actionable  in  themselves. 

435.  I  1742.  Respecting  plaintiff's  trade. 

436.  2  1750.  Discharged  from  employ. 

437.  i  1751.  Refusal  to  deal. 

438.  I  1752.  Refusal  to  employ. 

439.  I  1753.  Refusal  to  retain  in  employ. 

440.  §1754.  Refusal  to  sell. 

441.  §  1755.  Charging  a  criminal  offense. 

442.  §  1758.  The  same — Several  causes  of  action. 

443.  §  17''iO.  For  words  directly  charging  perjury. 

444.  §  1763.  The  same — Containing  special  inducements. 

CHAPTER  'IV. 

MALICIOUS  PROSECUTION. 

Form  445.    §  1764.    Common  form. 

The  same — Fuller  form. 

For  procuring  plaintiff  to  be  indicted. 

The  same — For  obtaining  indictment  on  which  a  nolU 

prosequi  was  afterwards  entered. 
Where  judgment  of  acquittal  was  rendered. 
For  malicious  arrest  in  a  civil  action. 

CHAPTER    V. 

FOR  PERSONAL  INJURY  CAUSED  BY  NEGLIGENCE, 

Form  461.    §  1798.    For  injuries  caused  by  collision  of  vehicle  driven  by 
servant. 
452.    2  1804.    Against  common  carriers,  for  overturning  stage  coach. 


446. 

§  1786. 

447. 

§  1787. 

448. 

5  1788. 

449. 

§  1790. 

450. 

§1792. 

Form  453. 

2  1811. 

454. 

2  1820. 

455. 

§  1821. 

466. 

21822. 

457. 

2 1824. 

458. 

2  1831. 

459. 

2  1837. 

460. 

2  1841. 

461. 

2  1842. 

462. 

2  1854. 

TABLE  OF  CONTENTS.  xxvii 

Aojainst  a  railroad  for  injuries  by  collision. 

The  same — B\'  car  running  otf  track. 

For  negligently  starting  car. 

For  injuries  caused  by  negligence  on  a  railroad,  in  omit* 

ting  to  give  signal. 
By  a  steamboat  explosion. 
Fur  injuries  to  an  engineer  of  a  railroad  company,  caused 

by  a  collision. 
Said  company  having  used  a  condemned  locomotive. 
By  executor  or  administrator  against  a  railroad  company, 

for  injuries  causing  death. 
By  heirs,  for  injuries  to  employee,  causing  death. 
Against  a  municipal  corporation,  for  injuries  caused  by 

leaving  the  street  in  an  insecure  state. 
468.    2  1864.    For  injuries  caused  by  rubbish  in  the  street,  whereby 

plaintiff  was  thrown  from  his  carriage. 
For  injuries  caused  by  leaving  a  hatchway  open. 
Another  form. 

For  injuries  caused  by  a  vicious  dog. 
Ai^ainst  physician  for  maltreatment. 
Against  surgeon  for  malpractice. 

CHAPTER    VI. 

FOR  VIOLATION  OF  PERSONAL  RIGHTS. 

Form  469.  2  1^77.  Against  officers  of  an  election,  for  refusing  plaintiflTs 
vote. 

470.  2  1880.  For  criminal  conversation. 

471.  2  ^884.  For  enticing  away  plaintiff's  wife. 

472.  2  1886.  For  debauching  a  daughter. 

473.  2  1899.  For  seduction  of  plaintiff's  daushter  or  servant. 

474.  2  1900.  For  seduction,  by  female  seduced. 


464. 

2 1866. 

465. 

2  1867. 

466. 

2  1868, 

467. 

2  1874. 

46& 

2  1876. 

ESTEE'S 
PLEADINGS,  PRACTICE, 


AND  FORMS. 

(nil) 


PART  FIRST. 

GENERAL  PRINCIPLES. 


CHAPTER  r. 

REMEDIES. 

§  1.  Remedies,  how  Secured. — Remedies  for  wrongs  are 
secured  by  a  proper  application  to  a  competent  court,  by  the 
party  or  parties  entitled  thereto,  in  an  action  or  proceeding 
against  the  proper  parties,  in  tbe  form  prescribed  by  law. 

§  2.  The  Same. — ^The  proceedings  in  courts  of  justice  to 
secure  such  remedies  are  divided  by  the  statutes  of  all,  or 
nearly  all,  of  the  states  which  have  a  code  of  practice  or  civil 
procedure,  into :  1.  Actions ;  2.  Special  Proceedings ;  3.  Pro- 
visional Remedies.  1 

1.      or  ACTIONS, 

§  3.  What  is  an  Action. — An  action  has  been  defined  to 
be  an  ordinary  proceeding  in  a  court  of  justice,  by  which  one 
party  prosecutes  another  party  for  the  enforcement  or  protec- 
tion of  a  right,  the  redress  or  prevention  of  a  wrong,  or  the 
punishment  of  a  public  offense.  But  in  some  sense  this  defi- 
nition is  equally  applicable  to  special  proceedings.  More  accu- 
rately, it  is  defined  to  be  any  judicial  proceeding,  which,  if 
conducted  to  a  determination,  will  result  in  a  judgment  or  de- 
cree.^   The  action  is  said  to  terminate  at  judgment.^ 

§  4.  Actions,  how  Divided. — Primarily,  actions  are  divided 
into  two  classes :  Civil  and  Criminal.     The  former  only  will  be 

1  Under  the  Code  of  Civil  Proced-  visional  remedies"  exist  in  California 

ure  of  California,  the  first  and  second  as  incidents  to  an  action, 
divisions  only  are  recognized  (see  sec.        *  People  v.  County  Judge  of  Bensse- 

21),  in  term's  at  least;  though  what  laer,  13  How.  Pr.  898.  ' 

are  known  under  other  codes  as  **  pro-        •  Co.  Lit.  289  a. 
EsTKB,  Vol.  I— 1. 


2  GENERAL  PRINCIPLES.  §  5. 

considered  in  this  work ;  and  the  different  classes  into  which  they 
are  divided,  and  the  mode  of  proceeding  therein,  will  be  treated 
.of  hereafter. 

n.       OF   SPECIAL   PROCEEDINGS   WHICH   ARE   NOT   ACTIONS. 

*§  5.  What  are  Special  Proceediags. — Remedies  pur- 
«ued  by  a  party  which  do  not  result  direotly  in  a  judgment,  but 
only  in  establishing  a  right,  or  some  particular  fact,  are  special 
proceedings.  They  include  proceedings  confined  to  courts  of 
justice,  and  from  which  an  appeal  will  He,  such  as  proceedings 
instituted  for  the  correction  or  revision  of  erroneous  acts  of  a 
court,  or  officer  appointed  by  a  court,  having  particular  qualifi- 
cations, or  occupying  some  particular  relation  to  the  parties  or 
the  subject-matter,  and  whose  acts  are  in  the  nature  of  adjudi- 
cations upon  which  the  subsequent  proceedings  rest,  however 
erroneoufi  they  may  be.^  The  following  are  instances  of  special 
proceedings : 

§  6.  Admission  to  Practice. — Application  for  admission 
to  practice  as  an  attorney  is  a  special  proceeding,  and  an  appeal 
lies  from  an  order  denying  such  application.' 

§  7.  Appraisement. — A  proceeding  by  commissioners  to  ap- 
praise compensation  for  lands  taken  under  the  general  railroad 
act.  3 

§  8.  Arbitration  and  Award. — A  proceeding  on  arbitra- 
tion is  not  an  action.*  It  is  an  adjudication  upon  a  matter  in 
controversy,  by  private  individuals  se'ected  and  appointed  by  the 
parties.^  Proceedings  on  arbitrations  are  not  affected  by  the 
■code.^  Such  proceedings  are,  however,  regulated  by  statute  in 
many  of  the  states. 

§  9.  Assessments. — ^Proceedings  to  assess  damages  on  lay- 
ing out  a  plank  road,  or  under  road  laws,  are  not  actions.*^ 

§  10.  Attaclim3nt. — In  New  York,  a  proceeding  to  enforce 
a  judgment  by  attacbmeut,  as  for  contempt,  is  also  a  special  pro- 
ceeding. ^ 

»  Porter  V.  Purdy,  29  N".  Y.  106.  874;  Billinfics  on  Awards,    3,  55-66; 

•Matter  of  Cooper,  21  N.  Y.  67;  Ru-^s'^ll's  Arbitrator,  Hi. 
Matter  of  the  Graduates.  11  Abb.  Pr.  «  New  York  Code,  88^5. 
801;  revprsina:  Matter  of  the  Gradii-        ^  G^eneral  Laws  of  Cal.,  par.  6451 ; 

ates  of  the  University,  81    Barh.  35:^;  Lincoln   v.  Colusa  Co.,  28  Cal.  662; 

10  Abb,   Pr.  848;    19   H..w.  Fr.  97;  Grisj^bv  v,  Burtnett,  81   Id.  406;   Ex 

Matterof  the  Graduat«'8 of  Columbia,  parte  flansoni,  8  N.  Y.  Code  R.  148; 

10  Abb,  Pr.  857;  19  How.  Pr.  186.  Ex  parte  Port  Plain  and  Cooperstown 

•New  York  Central  K.  R.  Co.  v.  PI.  Road  Co.,  Id.  148;   PeealsoN.Y. 

Maroni.  1  Kern.  277.  C^nt,  K,  R.  Co.  v.  Maronl,  11  N,  Y. 

*  CTflfornia  Code,  aecs.  12^1,  1290.  276. 

•8  Bla.  Com.  16;    8  Steph.  Com.        «  Gray  v.  Cook,  15  Abb.  Pr.  308, 


§  14. 


REMEDIES. 


8 


§  11.  Certiorari.  —  Certiorari  is  simply  a  writ  of  review  and 
not  of  action,^  and  does  not  lie  where  there  is  an  appeal  or  other 
remedy  at  law.*  At  common  law  it  tries  nothinor  but  the  juris- 
diction.^ 

§  12.  Confession  of  Judgment. — ^A  judgment  by  confession 
mav  be  entered  without  action.* 

§  13.  Contemp  t. —  Proceedings  in  punishment  for  contempts 
are  not  actions.^  Such  proceedings  may  be  for  a  contempt  by 
a  witness  or  a  party  for  disobedience  of  an  order  of  a  referee  ;• 
for  di30bcdience  of  a  subpoena;^  for  refusing  to  testify,  or  to 
allow  inspection  of  books  \^  for  disobeying  a  writ  of  mandate  or 
injunction  \^  for  sending  threatening  letter  to  a  grand  jury.^" 

§  14.  Contested  Elections. — The  act  giving  jurisdiction 
over  contested  elections  to  the  county  judge  is  constitutional. 
It  is  one  of  the  "  special  cases  "  provided  for  in  the  constitution." 


California  Code,  sees.  1067,  1068. 

■  1  Hilt.  195;  Cooper  V.  Kmney,  2 
Id,  12 ;  People  v.  Sliepard,  28  Cal.  115; 
Miliken  v.  Huber.  21  Id.  166;  People 
V.  Dwinelle,  29  Id.  632;  People  v. 
Stiilwcll,  19  N.  Y.  5  il ;  Onderdonk  v. 
Supervisors  of  Qufen?,  1  Hi II,  195; 
People  ▼.  Overseers  of  the  Poor,  44 
Barb.  4«'t7 ;  Poople  v.  Board  of  Pilots, 
87  Id.  126. 

«  SlMto  ex  rel.  Barnett  v.  Fifth  Dist. 
Ct.,  2  West  Coast  Rep.  630 ;  People  v. 
Delegates  of  San  PrHiicisco  Fire  De- 
partment, 14  Cal,  479.  That  the  Cali- 
fornia statute  is  affirmative  of  the 
common  law,  see  People  v.  Bd.  of  Del- 
egates, etc.,  14  Id.  479;  People  v.  Pro- 
vines,  34  Id.  520,  627,  overruling  Peo- 
ple ex  rel.  Church  v.  Hester,  6  Id.  679, 
As  to  power  of  county  courts  to  grant 
writs  of  certiorari,  see  Wilcox  v,  Oak- 
land, 49  Id.  29,  where  such  power  is 
denii'd,  except  in  aid  of  their  appel- 
late iuri.*diction.  It  cannot  be  substi- 
tuted for  appeal:  Id.  As  to  wht^n 
it  lies,  g.e  Cal.  P.  R.  R.  Co.  v.  C.  P. 
R  R.  Co.,  47  Id.  528.  That  district 
courts  and  judges  have  authority  to 
issue  the  writ,  see  Reynolds  v.  C<Minty 
Court  of  San  Joaquin,  47  Id.  604,  and 
Gallardo  v.  Hannnh,  49  Id.  136. 

*  CaliforniH  Code,  sec,  1132;  N.  Y. 
Code.  sec.  382;  Gunterv.  Sanchez,  1 
Cal.  45,  48;  see  Cordier  v,  Schloss,  12 
Id,  143;  affirmed  in  S.  C.  18  Id.  580 
and  cited  in  Wilooxon  v.  Burton,27  Id. 
228.  235,  in  which  the  latter  case  was 
approved ;  Allen  v  Smillie,  1  Abh.  Pr. 
854;  12  How,  Pr.  156;  Hill  v.  Nor- 
throp, 9  Id.  525.  Ai)d  the  statute 
must  be  strictly  pursued.    Chapia  v. 


Thompson,  20  Cal.  681.  So  of  pro- 
ceedings on  motion,  setting  asioe  a 
judgment  bv  confession:  Belknap  v. 
Waters,  11  N.  Y.  497;  compare  Bow- 
ery Extension  Case,  2  Abb,  Pr,  368. 
The  purpose  and  true  interpretation 
of  the  provisions  of  the  code  regulat- 
ing confessions  of  judgment  are  ex- 
plained in  H.)pkins  v.  Nelson,  24  .V.  Y. 
518;  Neusbaum  v.  Keim,  Id  825,  re 
versing  S.  G.,1  Hilt.  520;  7  Abb.Pr.23. 

*  California  Code,  c.  721. 

•  Page  V.  Randall,  6  Cal.  82, 

^  California  Code,  sec,  1991 ;  An- 
drews v,  Andrews, Col.  and  C,  Cas,  121. 

8  Forbes  v,  Mrteker,  2  Edw,  452. 

»  McCauley  v.  Brooks,  16  Cal.  11; 
Golden  Gate  H.  etc.  Co.  v.  Superior 
Court,  2  West  Coast  Rep.  736. 

"  In  re  Tyler,  1  West  Coast  Rep. 
837.  For  other  acts  which  may  con- 
stitute conti^mpts  see  Cal.  Code,  sec. 
1209;  People  v.  Dors.y,  32  Cal.  296; 
1  Tidd's  Pr.  479,  480;  4  Rla.  Com. 
285;  4Steph.  Cora.  34S:  H  >lstein  v. 
Rice,  15  Abb.  Pr.  307;  Gray  v.  Cook, 
Id.  308.  The  provisions  of  the  re- 
vised statutes  concerning  contempts 
in  New  York  are  not  affected  by  the 
Code  ol  Procedure.  They  are  to  en- 
force civil  remedies  and  protect  the 
rights  of  parties:  People  v.  Compton, 
1  Duer,  512;  In  re  Smelhurst,  3  Code 
R  55;  2S,indf.  724. 

"  Saunders  v.  Haynes,  18  Cal.  145; 
approved  as  to  juri^^diction  in  Stone  v. 
Elkins,  24  Id.  12.5.  126;  Dorsey  v. 
Barry,  Id.  452;  and  cited  in  People  v. 
Da^s,  15  Id,  91;  and  approved  as  to 
such  being  •' special  case*"  in  HLellar 
V.  Chapman,  34  Id.  635,  640. 


4  GENERAL  PRINCIPLES.  §   15. 

§  15.  Righv^ays. — In  New  York,  an  appeal  before  referees 
in  highway  proceedings  is  not  an  action.^  Nor  is  a  proceeding 
to  open  streets.* 

§  16.  Indigent  Relative. — The  proceeding  to  compel  one 
to  support  an  indigent  relative  in  such  states  as  have  a  statute 
on  this  subject,  is  a  special  proceeding  under  the  act.' 

§  17.  Insolvency  Cases. — Insolvency  cases  are  "special 
cases,"  and  it  was  an  exercise  of  legiiimate  power  in  the  legis- 
lature to  confer  jurisdiction  in  such  cases  upon  both  county  and 
district  courts.*  Proceedings  in  insolvency  are  not  stricti  juris 
either  proceedings  in  law  or  equity,  but  a  new  remedy  or  pro- 
ceeding created  by  statute.* 

§  18.  Joint  Debtors. — Proceedings  against  joint  debtors 
after  judgment  are  not  actions."  In  proceedings  of  this  character, 
does  the  cause  of  action  or  right  to  proceed  arise  upon  judgment 
or  upon  the  original  demand?  The  proceedings  bear  a  strong  sim- 
ilarity to  the  action  of  scire  facias,  and  were  no  doubt  intended 
as  a  substitute  therefor.'^  Such  a  proceeding  is  not  a  new  action, 
and  the  party  served  can  not  have  the  action  removed  into  a  fed- 
eral court.®  The  remedy  by  this  proceeding  is  merely  cumulative.' 

§  19.  Probate. — Probate  proceedings  are  not  civil  actions 
within  the  meaning  of  the  Practice  Act.^** 

§  20.  Referees. — A  proceeding  before  referees  is  not  an  ac- 
tion.^^  The  California  statute  concerning  referees  is  in  aid  of 
the  common-law  remedy  by  arbitration,  and  does  not  alter  its 
principles.^ 

§  21.  Review  of  Assessment. — Proceedings  to  review  the 
acts  of  assessors  appointed  to  assess  the  property  of  the  parties 
benefited  by  the  construction  of  a  sewer  with  their  proportion- 
ate expense,  are  not  actions. ^^  A  proceeding  to  vacate  a  local 
assessment  in  the  city  of  New  York  is  not  a  special  proceeding  in 
the  sense  of  the  code.^* 

1  People  V.  Flake,  14  How.  Pr.  527.  '  »  Alden  v.  Clark,  11  How.  Pr.  209, 

«  In  re  The  Bowery,  12  How.  Pr.  97.  218. 

»  Haviland  v.  White,  7  How.  Pr.  154.  »  Pairchild  v.  Durand,   8  Abb.  Pr. 

*  Harper  v.  Freelon,  6  Cal.  76 ;  ap-  805. 

proved  in  McNeil  v.  Borland,  23  Id.  "  Dean  v.   Eldridge,    29   How.  Pr, 

144,148;  see  also  Frank  v.   Brady,  8  218. 

Id.  47,  and  People  ex  rel.  Grow  v.  ^^  Estate  of  Scott,  16  Cal.  220. 

Kasborough,  29  Id.  415,  418.  "  California  Code,  sec.  636 ;  Plant  v. 

6  Cohen  V.  Barrett,  5  Cal.  195;  ap-  Fleming,  20  Cal.  92;   People  v.  Flake, 

proved  as  to  jurisdiction  in   "  insol-  14  How.  Pr.  627. 

vency  cases"  in  Frank  V.  Brady,  8  Id.  ^^  Xyson     v.    Wells,     2    Cal.    122; 

47.     That  cases  in  insolvency  are  not  afl5rmed  in  Headley  v.  Reed,  Id.  822; 

equity  cases,  approved  in  People  ex  Grayson  v.  Guild,  4  Id.  122;    Phelps 

rel.  Grow  v.  Kasborough,  29  Id.  418.  v.  Peabody,  7  Id.  53. 

•  California  Code,  sees.  989-994 ;  N.  "  Porter  v.  Purdy,  29  N.  Y.  106. 
Y.  Code,  Bee  376.  »*  Ke  Dodd,  27  N.  Y.  629. 


S  26.  REMEDIES.  6 

§  22.  Specific  Performance. — In  New  York,  proceedings 
to  compel  a  specific  performance  of  contract  of  ancestor  by  heirs 
of  deceased  are  not  actions.^ 

§  23.  Submission  of  Controversy. — ^Parties  may  without 
action  agree  upon  a  case,  and  present  a  submission  of  the  same 
to  any  court  which  should  have  jurisdiction.^  Such  a  proceed- 
ing is  not  an  action. ^ 

§  24.  Supplementary  Proceedings. — Proceedings  supple- 
ment ary  to  execution  are  special  proceedings.'* 

§  25.  Testimony. — Proceedings  to  perpetuate  testimony  are 
not  actions.* 

m.      OP   PROVISIOKAL   REMEDIES. 

§  26.  Provisional  Remedies,  What  Are. — ^Proceedings 
before  judgment  or  decree,  in  courts  exercising  equity  powers, 
to  provide  for  the  safety  and  preservation  of  property  in  the 
possession  of  an  adverse  party,  or  to  preserve  it  during  the  pen- 
dency of  an  appeal,  by  the  ajipointment  of  a  receiver  or  other 
like  officer,  and,  in  some  cases,  the  disposition  of  the  property 
after  judgment  or  decree,  and  also  restraining  orders  or  injunc- 
tions pending  the  action,  which,  though  now  regulated  by  stat- 
ute in  most  of  the  states,  existed  independently  of  it,  as  a 
necessary  incident  to  equitable  jurisdit-tion.  These  proceedings, 
however,  so  far  as  they  are  defined  or  regulated  by  statute,  as 
well  as  others  created  by  the  statute,  are  usually  called  "  pro- 
visional remedies." 

The  provisional  remedies  created  by  the  statute,  or  which  have 
been  adopted  from  the  common  law,  are  intended  to  secure  in 
advance  the  enforcement  of  the  judgment  which  is  sought  to  be 
obtained.  Of  these,  arrest  and  bail,  attachment  of  the  defend- 
ant's property,  and  replevin  or  claim  and  delivery,  are  familiar 
examples.  These  provisional  remedies  will  be  treated  of  in  con- 
nection with  the  actions  in  which  they  may  be  resorted  to. 

»  Hyitt  V.  Seely.  11  N.  Y  52.  *  Gould  v.  Chapin,  4  How.  Pr.  185; 

*  Cnlifornia  Code.  sec.  1188;  Cran-  Duvis  v.  Turner.  Id.  190;  contra, 
dall  V.  AiiiKdore  Countv,  -0  (^hI.  72.  JJresscr  v.  Vmi  Pelt,  1')  LI.  19. 

•  Lang  V.  Ropke,  1  Du«r,  701,  702.  •  OHliloniia  Code,  wjcs.  2083,  2084. 


GENERAL  PRINCIPLES.  §  27. 


CHAPTER  II. 

JURISDICTION. 

§  27.  Jurisdiction,  What  Is. — Jurisdiction  is  the  power  to 
hear  and  determine  a  case.^  In  a  more  general  sense  it  is  the 
power  to  make  law ;  the  power  to  legislate  or  govern ;  the  power 
or  right  to  exercise  authority.*  Each  branch  of  government  has 
its  functions  assigned,  and  is  beyond  the  control  of  the  other 
departments  of  government.^  Thus  legislative  functions  can  not 
be  exercised  by  the  judiciary.^  Nor  can  the  courts  of  justice 
interfere  with  the  political  powers  of  the  legislature. ^ 

§  28.  Jarisdiction  in  General. — The  jurisdiction  of  a  court 
will  generally  be  presumed  in  the  case  of  superior  courts,  or 
courts  of  general  jurisdiction,  where  the  want  of  it  does  not 
appear  upon  the  record.^  And  where  jurisdiction  is  limited  by 
the  constitution  or  by  statute,  the  consent  of  parties  can  not 
confer  it  upon  the  court,  except  where  ihe  limitation  is  in  re- 
gard to  certain  persons.  In  such  case  they  may,  if  competent, 
waive  their  exemption  and  confer  jurisdiction.'  And  con- 
versely the  agreement  of  parties  can  not  operate  to  divest  a 
court  of  its  jnrisilieti(m.8  The  distinction  which  exists  between 
the  want  of  jurisdiction  and  jurisdiction  irregularly  acquired 
or  exercised,  should  be  carefully  noted.  In  the  first  case,  the 
judgment  can  be  attacked  in  any  form  directly  or  collaterally ; 
in  the  second,  only  by  direct  proceeding  in  the  court  which 
rendered  it.^ 

§  29.  Jurisdiction  at  Chambers. — The  general  rule  is, 
that  all  judicial  business  must  be  transacted  in  court,  and  that 
there  must  be  some  express  warrant  of  the  statute  to  authorize 

1  United  Stales  v.  Arredondo,  6  S<'pulvedft,  5  Id.  149;  Grewell  v.  Hen- 
Pet.  (391.  702;  Grignnn's  Lessee  v.  dirsmi,  7  Id.  290;  Gray  v.  Hnwes,  8 
Asior,  2  U.w.  319,  8;i8;  C.  P.  R.  R.  Li.  5t)2;  Carpentier  v.  Oakland,  30 
Co.  V.  Plncer  Co  ,  43  Cat.  31)5.  Id.  439,  approved  in  uahii  v.  Kelly, 
* 'I'avlor  V.  Hoide,  1  Burr.  U.S.  84  Id.  391.  wliii-h  authority  cilea 
»  Parsons  V.  1  uol.  Co.  Wat.  Co.,  6  Forl.es  v.  H\de.  31  Id.  342;  Sharp  v. 
Cal.  43.  Daiignev,  33  Id.   ftO.'i;  Clark  v.  Saw- 

♦  Pfople  V.  Town  of  Nevada,  6  Cal.  ver,  4H  Id.  183;  Hughes  v.  Cunimingg, 
143;  afipri.ved  in  Coltoii  v.  iiossi,  9  1  West  Coast  Rep.  b08;  bmith  V. 
Id.  .')9">;  Si.ne  v.  Elkins.   24    Id.  125;  Montoya,  Id.  152. 

People  v.  Siiidersoii,    0  Id.  167.  '  Gray  v.  Hawes,  8  Cal.  562;  Nor- 

'  Nounu.-s  v.   Douirhiss.  7  Cal.  6.5,  wood  v.  Kei.field.  34  Id.   329;   Bates 

cit-d  111  McC'uley  v.  Rroiks.  16  Id.  v.  Gage.  40  Id.  188. 

11,  43:  Napa  Valley  li.  R.  Co.  v.  Napa  «  .Muhirow  v.  Nrf.rris,  2  Cal.  74. 

Co..  :^0  Id.  436  »  Wliuwell  v.  Harbu-r.?  Cal.  51,  64, 

•  NeUoii  V.  Lemon,  10  Cal.  50;  Nel-  approved  in  Peck  v.  tStrauss,  83  Id. 
son  V.  Mitchell,   Id.  93;  Johnson  v.  685. 


S  80.  JURISDICTION.  7 

any  of  it  to  be  transacted  at  chambers.*  A  judge  at  cham- 
bers has  no  power  to  make  an  order  directing  the  clerk  of 
his  court  to  enter  in  the  minutes  of  the  court,  nunc  pro  tunc^ 
an  order  alleged  to  have  been  made  in  open  court.*  Nor  to 
make  an  order  setting  aside  an  execution  issued  on  a  judgment, 
and  perpetually  staying  the  enforcement  of  the  same.*  Nor  to 
entertain  notions  to  strike  out  pleadings  or  parts  of  pleadings.* 
In  Washington  territory  a  judge  of  the  district  court  has  power 
to  render  judgment  at  his  chambers,  and  out  of  term,  in  a  case 
where  the  defendant  has  made  default.* 

§  30.  Concurrent  Jurisdiction  — There  is  nothing  in  the 
nature  of  jurisdiction  which  renders  it  exclusive.^  But,  on  the 
contrary,  it  may  be  concurrent.^  The  legislature,  however,  can 
not  confer  on  one  court  tlie  functions  and  powers  which  the 
constitution  has  given  to  another,  where  that  jurisdiction  is  ex- 
clusive.8  But  if  exclusive  jurisdiction  be  not  conferred  upon  a 
court  by  the  constitution,  then  the  legislature  may  confer  on 
other  courts  the  powers  and  functions  which  the  constitution 
has  confeiTed  on  that  court.^  The  grant  of  original  jurisdiction 
in  the  constitution,  to  a  particular  court,  of  a  class  of  cases, 
without  any  words  excluding  other  courts  from  exercising  juris- 
diction in  the  same  cases,  does  not  necessarily  deprive  other 
courts  of  concurrent  jurisdiction  in  such  cases.  ^^  Thus  juris- 
diction in  rem  may  exist  in  several  courts  at  the  same  time  on 
the  same  subject.^^  But  the  court  whose  mesne  or  final  process 
has  made  the  first  actual  seizure  of  the  thing,  must  have  ex- 
clusive power  over  its  disposal  and  the  distribution  of  the  fund 
arising  therefrom,  and  the  judgments  of  all  other  courts,  when 
properly  authenticated  and  filed  in  the  court  having  custody  of 
the  fund,  must  be  regarded  as  complete  adjudications  of  the 
subject-matter  of  litigation,  and  be  entitled  to  distribution  ac- 

>  Larco  v.  Cag»neimva,  SO  C«l.  560;  *  Courtwright  v.  Bear  Riv.  and  Au- 

Norwood  V.  Kniifield,  34  Id.  382.  burn  Wat.  Co.,  30  Cal.  580. 

s  Hegeler  v   Henckell,  27  I'ol.  491.  »  IVrry  v.  Ames,  2«  Cal.   872;  8«>e, 

»  Bond   V.    Pachfco,    30   Cal.    530;  also.  Court wiie;ht  v.  B.   R.  and  Aub, 

Norwood  V.  Keiifit-ld,  34  Id.  329,  332.  Wat.  Co  ,  30  Id.  685.     This  h-.s  been 

♦  Larco  v.  Casanf-uava.  30  (Jal.  6b0;  pra<ti<allv  demonstrated  in  American 

Norwood  V.  Kei  field.  34  Id.  332.  Co.  v.  Bradford,    27    Id.  3r.O.   cited  in 

»  Miirne    V.    Schwahaoher  Bros.  &  Hill  v.  Sinilh,  Id.   476;  see  also  Peo- 

Co.,  2  West  Coast  Rep.  799.  pie  v.  Davidson,  30  Id.  879;    Warner 

•Dehfifldv.    Slate    ot  Illinois,    2  v.  RieMmer  Uncle  Sam.  9  Id.  697. 

Hill,  157,  164.  '"  C-'iirtwiiirht    v.    B«ar    Riv.    and 

'  Perry  V.  Ames,   26    Cal.  372.    ap-  Aub.  Wa;er  and  Min.  Co.,  .30Ual..573. 

proved   m   f'ariaga  v.  Drydtni,    ;^0  Id.  "  Av<'rill   v.    The  Hartft)rd,   2  Cal, 

246;  Kiiowles  v.   Yesttes,'  .^1    Id.  90;  809.    Httirmed    in    Taylor  v.  Steamer 

and  Courtwright  v.   B.    R.  and    Au-  Cdumhia,  5  Id.  272;  Meisjtjs  v.  S-an- 

bnrn    WaU    and    Miiu    Co.,  30  Id.  neij.  7   Id.  40.S;  Fisher  v.    White,  8 

685.  Id.  422. 


8  GENERAL  PROCEEDINGS.  §  31. 

cording^.i  ^n^  an  action  for  the  non-delivery  of  freight  may 
exist  in  the  district  court  of  the  United  States  contemporane- 
ously with  an  action  for  freight  money  in  a  state  court,  without 
fear  or  danger  of  any  collision  or  clashing  of  jurisdiction.*  As 
a  general  rule,  however,  courts  can  not  interfere  with  the  judg- 
ments or  decrees  of  other  courts  of  concurrent  jurisdiction. 3 

§  31.  Jurisdiction  of  State  Coutts. — State  courts  have 
jurisdiction  in  the  following  casej,  among  others,  over  subject- 
matter  situated  within  the  exclusive  control  of  the  United  States 
government,  or  over  parties,  subjects  of  a  foreigji  government, 
resident  within  the  state : 

(1)  Assault  and  Battery. — In  an  action  for  assault  and  battery 
in  a  United  States  navy  yard,  although  the  state  has  ceded 
exclusive  jurisdiction  of  that  place  to  the  United  States.*  So 
also  state  courts  have  jurisdiction  of  crimes  committed  in  the 
United  States  military  reservation  of  Fort  Leavenworth. ^  The 
act  of  the  legislature,  ceding  the  navy  yard  at  Brooklyn  to  the 
United  States — which  provides  that  the  cession  "  shall  not  pre- 
vent the  operation  of  the  laws  of  the  State  "  within  the  same — 
has  the  effect  of  preserving  the  jurisdiction  of  the  state  over 
offenses  committed  on  board  a  government  ship  in  the  navy 
yard,  and  over  the  person  of  the  offender.^ 

(2)  Contracts. — State  courts  have  jurisdiction  over  actions  on 
a  contract  made  in  a  foreign  country ;'  or  of  an  acticm  on  a  pol- 
icy of  insurance  issued  in  the  state  by  a  resident  agent  of  a 
foreign  insurance  company. ^ 

(3)  Customs  and  Duties. — Of  actions  by  collectors  of  United 
States  customs  upon  receiptor's  agreement;^  and  of  actii»ns  on 
bonds  given  for  duties  to  the  United  States.  ^° 

(4)  Foreign  Governments  may  sue  and  be  sued  in  state  courts 
in  their  federative  names.  ^^ 

(5)  Foreign  Residents. — State  courts  have  jurisdiction  in  ao- 

*  Russell  V.  Alvarez,  5  Cal.  48,  '  Skinner  v.  Tiriker,  31  Bnrb.  333. 
•Id.  *  Burns  V.  Provimial  IirsunuK  f  Co., 
'Anthony  v.    Dunlap,    8  Cal.  26,     35  Barb.  525;  Watson  v   Cabot  Bank, 

affirmed    in"  Uhlfelder  v.   Lew,  9  Id.  9  Snndf.  428. 

614;  R<'va!k  V.   Kraemer,    8   Id.   66.  »  Sailly  v.  Cleveland.  10  Wend.  155. 

For  a   more  exhaustive  discussion  of  '"United  Slates- v.  Di.dj;e,  14  Johns. 

the  exclusive   and    concurrent   juris-  95. 

diction  of  courts  than    the  limits  or  "  R'^public  of  Mi-xico  v.  Arransrois, 

purposes  of  this  work  admit  of,    seel  11    How.    Pr.   1;   Mills  v.  Thursby.  2 

Pomeroy's  Eq.  Jur.,  sees.  146-189.  Abb.  Pr.  487;    K.putilic  of  .Mexico  v. 

♦  Armstroni;  v.  Foote.  11  Abb.  Pr.  Arriinijois,  8  Id.  470:  M:  nnii  i-- v.  St.ite 
884!  but  see  Dibble  v.  Clapp,  31  How.  of  Nicara!,'ua,  14  How.  Pr  517  ;  Dela- 
Pr.  420.  fl.-ld   v.   State   of    Ill'nois,  2(5  W.-nd. 

»  Clay  V.  State,  4  Kan.  49.  192;   Bnrrail  v.   .lewelt.   2  Paiu'e  Ch. 

•  People  V.  Lane,  1  Edna.  118.  134;  Gibson  v.  Woodwoith,  8  id.  1S2. 


§  81.  JURISDICTION.  9 

tions  against  foreign  executors  or  administrators  who  are  resi- 
dents of  the  state. ^ 

(6)  Habeas  Corpits. — To  discharge  on  habeas  corpus  persons 
enlisted  in  the  United  States  army.^ 

(7)  Pr'perfy  out  of  Stale. — Where  jurisdiction  of  the  person 
is  acquired,  state  courts  have  equitable  jurisdiction  in  actions 
respecting  real  estate,  even  if  the  property  is  situated  out  of 
the  stale. 3  They  have  judsdicti  )n  in  an  action  for  a  breach  of 
covenant  to  Cunvey  real  property  situated  in  a  foreijyn  state.^ 
Thus,  in  the  leading  case  of  Peun  v.  Lord  Baltimore,  1  Ves.  sen. 
444,  specific  performance  of  a  contract  for  lands  lying  in 
America  was  decreed  in  England.  So  also  in  the  case  of  The 
Earl  of  Kildare  v.  Sir  Moiiiue  Eustace  and  Fitzgerald,  1  Vern. 
419,  it  was  held  that  a  trust  in  relation  to  lands  lying  in  Ireland 
ma}'  be  enforced  in  England  if  the  trustee  live  in  En  land.  So 
if  the  subject  of  the  contract  or  trust  be  within  the  jurisdiction, 
but  the  parties  are  not.^  But  the  state  courts  have  no  jurisdic- 
tion of  an  action  for  injury  to  real  estate  out  of  that  stated 

(8)  Torts  Generally. — State  courts  have  jurisdiction  of  actions 
for  torts  committed  in  a  foreign  state,  where  the  defendant  is 
served  with  process  witliin  the  state.'  So  also  for  a  fraudulent 
conspiracy  formed  in  another  state.® 

(9)  United  States  or  U.  S.  Officers. — The  United  States  or  a 
state  may  consent  to  be  sued  in  a  state  court. ^  Or  an  action  may 
be  maintained  in  a  state  court  against  ofiQcers  of  the  United  States 
government  in  certain  casesi.^* 

IQuliokv.  Galick.  aSBarb.  92;  21  Y.  363;  Gardner  v.  Ogdon,  22  Id. 
How.  Pr.  22;  Montalvan  V.  Clover,  827;  Newton  v.  Bronson,  18  Id.  587; 
82  Barb.  190;  Sere  v.  0  'it,  6  Al)b.  Fennerv.  Sanborn,  37  B:irb.  610. 
Pr.  482.  The  courts  of  New  York  '  Arglasse  v.  Muschiimp,  1  Vern.  75; 
have  no  jiirisdicti  n  in  an  acfmn  at  Toller  v.  Carteret,  2  Id  494;  Wag- 
law  atjainst  foreign  executors  or  ad-  ner  v.  Watts.  2  Cranch  C.  C.  148; 
uninistrators:  Metcalf  v.  Clark,  41  Cleveland  v.  Burnell,  25  Barb.  682; 
Barb.  45.  Newton   v.    Bronson,   8    Kern.     587; 

«  He  Carlton,  7  Cow.  471 ;  Re  Dal'b,  Rourke  v.  McLaughlin,  Cal.  Sup.  CL, 

12   Abb.    Pr   113;    Ke  Phelan.  9  Id.  July  T.,  1869. 

286;   United   Statea   v.     Wyngall,   6  « M-.tt  v.  Coddington,  1  Abb.   Pr. 

Hill,  16;  Re  Ferguson,  9  .Johns.  239.  (N.  S.)  290;  Walts  v.  Kinney,  6  Hill, 

A.»  to  jurisdiction  by  habeas  corpus  82. 

en  a  commitraent   by  a  court  of  the  ^  So  held  in  New  York:    Hull  v. 

United   Slates,     see    Re    Birrett,   42  Vreeland,  18  Abb.  Pr.   182;  Lutour- 

Barb.  479;   In   Re  Husted,  1   .lohns.  ette  v.  Clark,  45  Btrb.  323. 

Cas.  136;  Re  Hopson  40  Barb.  8i.  »  Mussina  v.  Belden,  6  Abb.  Pr.  165. 

•  Mussina  v.    Belden,   6  Abb.    Pr.  'The  People  ot   Mich.  v.  Phoenix 

165;  Ward  v.  Arredondo,  Ilnpk    Ch.  Bk..4  B-.sw.  363 

243;  Shattuck  V.  Cassidy,  8  E  Iw.  Ch.  w  Ripley  v.  Gelston,  9  .Johns.  201; 

152 ;  Slatler  v.  Citrn.ll.  2  Sandf.   Ch.  In  re  Stacy,  10  Id.  328;  Hovt  v.  Gels- 

673;  De  Klyn  v.   Walkins.  8  Id.  185;  ton.  13  Id.  141;  Wilson  v.  M<Kenzi«, 

D'lvernois  V.  Leavitt  23  Barb.  63.  7  Hill,  95;  Teall  v.  Felton.  1  Corast, 

*Mott  V.   Coddington,  1    Abb.  Pr.  637;McButtv.  Murray,  10  Abb.  Pr. 

(N.  S.)  290;  Bailey  v.  Rider,   10  N.  196. 


10  GENERAL  PRINCIPLES.  §  32. 

§  82.  Within  the  Jurisdiction  of  the  Court,  means 
within  the  state.*  But  whenever  the  statute  prescribes  certain 
specific  acts  to  be  done  as  prerequisites  to  the  acquiring  of  juris- 
diction, such  acts  must  be  substantially  performed  in  tlie  manner 
prescribed.^  The  jurisdiction  of  state  courts  extends  to  hearing 
and  determining  cases  left  pending  in  the  late  United  States  terri- 
torial courts.  3 

§  33.  Constitutional  Jurisdiction  of  California  Courts. 
Ih  California,  prior  to  the  adoption,  in  1879,  of  tiie  present  con- 
stitution, the  jurisdiction  of  the  several  courts  was  fixed  by  the 
constitution,  which  prescribed  that  "  the  judicial  powers  of  the 
state  shall  be  vested  in  a  supreme  court,  in  district  courts,  in 
county  courts,  in  probate  courts,  and  in  justices  of  the  peace, 
and  in  such  recorders  and  other  inferior  courts  as  the  legisla- 
ture may  establish  in  any  incorporated  city  or  town."'*  The 
constitution  oi  1879  made  radical  changes  in  the  judicial  system 
of  the  state.  Among  other  things,  it  abolished  the  district, 
county,  and  probate  courts,  as  separate  tribunals,  and  vested 
the  jurisdiction  formerly  exercised  by  them  '•«  superior  courts. 
The  present  constitution  provides  "  that  the  julicial  power  of 
the  state  shall  be  vested  in  the  senate  sitting  as  a  court  of  im- 
peachment, in  a  supreme  court,  superior  courts,  justices  of  the 
peace,  and  such  inferior  courts  as  the  legislature  may  establish 
in  any  incori)orated  city  or  town,  or  city  or  county."  ^  Under 
its  former  judicial  system,  the  California  courts  established  sev- 
eral propositions  which  are  equally  applicable  to  the  sj'stem 
now  in  existence.  Among  such  propositions  are  that  the  legis- 
lature can  not  confer  other  than  judicial  functions  upon  any 
court.^  That  municipal  and  inferior  courts  can  onlj'  be  of  in- 
ferior, limited,  and  special  jurisdiction,  and  can  not  go  beyond 
the  power  conferred  upon  them  by  statute,  nor  can  they  assume 
t^ower  by  implication.'    Where  the  statute  creating  a  new  right 

1  People  V.  McCauley,  1  Cal.  380;  Co.  v.  Stinilnua  Co.,  Id.  442;  Phelan 
S; J*'r-ns  V.  Irwin.  12  I  1. '80').  v.   Sjin    FrMni-isoo,   Id.  olO;    Harden- 

2  Steel  V.  St.'pi,  I  Nev,  27;  Paul  v.  bur^  v.  Kidd.  10  LI,  408;  People  v. 
Arin«lrong.  Id.  82.  liircliam,    12   Id.  5.5;    Plielan    v.  San 

'Hastings    v,     Johnson,     2    Nev.  PVimcisco,  20  11.42;  People  v.  San- 

190.  derson.  80    MM?;  but.   in    People  v. 

*  Cal.  Const,  (old),  art.  6,  sec.  1.  Piovities,  84  Id.  52"),  the  ca-^e  of  Bur- 

*  Cnl.  Const.  (ISrO).  art.  6,  sec.  1.  govne  v.  Supervisors  of  Sum  F'nincisco 

*  So  held  in  liurjj  'yne  v.  Supi-rvis-  wa-  conmn'iiU'd  on  and  ovcrruli-d  {obi- 
ors  of  Sjin  Francisco.  5  Cil.  •'.  which  <>•>•  '/icfmn);  see  also  People  v.  Bush, 
WHS  alTiriued  in   Exline  v.  Sinilli.  II.  40  [.|.  841. 

118;   P.-ople  V.   Appl.-^al".    Id.   2'.t5;  '  .Mi'vnr  v.  Kalkmnnn,  6   Cal.  .')82, 

Di.  key  V    llurlbiirt.  Id.  811;  Tlioiii|..  ciicd  iti  IviMiyon  v.  Wdty.  20  Id.  fitO; 

Bon  V    WilliMnis  i".    11    8'.t,   I'.'oplt-  v.  C>ni twniiflii"  v.   IJ "M     KIv    an  1    .\ub. 

Town  of  Nevada.  Id.  U4-  Tuolumne  W'nler    and    .Min    Co.    a'^  Cal.   579; 


§  34.  JURISDICTION".  11 

and  a  particular  remedy  for  violation  thereof,  provides  that  the 
remedy  must  be  pursued  in  a  particular  court,  no  other  court 
has  jurisdiction.^  In  such  case  the  statute  must  be  strictly 
pursued.2  The  constitution  not  having  defined  the  jurisdiction 
of  the  municipal  courts  authorized  to  be  established,  it  is  left  to 
be  regul  ited  by  the  legislature  un  ler  its  general  p  )wers. 

§  34.  Formationof  the  California  Supreme  Court. — ^The 
supreme  court  of  California  as  it  exists  under  the  present  consti- 
tution consists  of  a  chief  justice  and  six  associate  justices. 
The  court  may  sit  in  department  and  in  bank,  and  is  always 
open  for  the  transaction  of  business.  There  are  two  depart- 
ments, den)minated,  respectively,  department  one  and  de- 
partment tw  >.  The  chief  justice  is  empowered  to  assign  three 
of  the  associate  justices  to  each  department.  Such  assignment 
may  be  changed  by  him  from  time  to  time,  and  the  associate 
justices  may  interchange  among  themselves  by  agreement. 
Each  department  has  power  to  hear  and  determine  causes  and 
all  questions  arising  therein,  subject  to  the  constitutional  pro- 
visions in  relation  to  the  court  in  bank.  The  presence  of  three 
justices  is  necessary  to  transact  any  business  in  either  of  the 
departments,  except  such  as  may  be  done  at  chambers,  and  the 
concurren;e  of  three  justices  is  necessary  to  pronounce  a  judg- 
ment. The  chief  justice  apportions  the  business  to  the  depart- 
ments, and  may,  in  his  discretion,  order  any  cause  pending 
before  the  court  to  be  heard  and  decided  by  the  court  in  bank. 
The  order  may  be  made  before  or  after  judgment  pronounced 
by  a  department ;  but  where  a  cause  has  been  allotted  to  one 
of  the  departments,  ami  a  judgment  pronounced  thereon,  the 
order  must  be  made  wilhin  thirty  days  after  stich  judgment, 
and  concurred  in  by  two  of  the  justices,  and  if  so  made  it 
shall  have  the  effect  to  vacate  and  set  aside  the  judgment.  Any 
four  justices  may,  either  before  or  after  judgment  by  a  depart- 
ment, order  a  case  to  be  heard  in  bank.  If  the  order  be  not 
made  within  the  time  above  limited,  the  judgment  is  final.  No 
judgment  by  a  department  becomes  final  until  the  expiration  of 
the  period  of  thirty  days,  unless  approved  by  the  chief  justice, 
in  writing,  with  the  con  urrence  of  two  associated  justices. 
The  chief  justice  may  convene  the  court  in  bank  at  any  time, 

"Winter  ▼.  Fitzpatrick,  85  Cal.   269;  T.  18fi3;  and  cited  in  People  v.  Pro- 

Morley  v.   Elkms,  37    Id.  454.     The  vinos,  34  Cal.  6J0. 

term    "muiiicipi>l   courts"    includ^'s  '  Smith  v.  Omnibus  R.    R,  Co.,   86 

mayors'  and  recorders'  courts  :  Uridias  Cal  281. 

V.    Slorrell,   22    Id.  473,   approved  in  *  Cohen  v.  Biirrett,  .5  Id.  195. 

IJridias  v.  Buzee,  Cal.  Sup.  Ut.,  July  »  Uridias  v.  Morrill,  22  Id.  478. 


12  GENERAL  PRINCIPLES.  §  85. 

and  is  the  presiding  justice  of  the  court  when  so  convened. 
The  concurrence  of  four  justices  present  at  the  argument  is 
necessary  to  pronounce  a  judgment  in  bank ;  but  if  four  justices, 
80  present,  do  not  concur  in  a  judgment,  then  all  the  justices 
qualified  to  sit  in  the  cause  shall  hear  the  argument;  but  to 
render  a  judgment  a  concurrence  of  four  judges  is  necessary. 
In  tlie  determination  of  causes  all  decisions  of  the  court  in 
bank  or  in  departments  must  be  given  in  writing,  and  the 
grounds  of  the  decisions  shall  be  stated.  Tlie  chief  justice 
may  sit  in  either  department,  and  shall  preside  when  so  sitting, 
but  the  justices  assigned  to  each  department  shall  select  one  of 
their  number  as  presiding  justice.  In  case  of  the  absence  of 
the  chief  justice  from  the  place  at  which  the  court  is  held,  or 
his  inability  to  act,  the  associate  justices  shiill  select  one  of 
their  own  number  to  perform  the  duties  and  exercise  the  powers 
of  the  chief  justice  during  such  absence  or  inability  t(»  act.^ 

§  35.  Election  and  Term  of  OflBce  of  Justices. — The 
chief  justices  and  the  associate  justices  of  the  California  supreme 
court  are  elected  by  the  qualified  electors  of  the  st:ite  at  laige 
at  the  general  state  elections,  at  the  times  nnd  places  at  which 
state  officers  are  elected.  Their  terms  of  offl<e  shall  be  twelve 
years,  from  and  after  the  first  Monday  after  the  fi  st  day  of 
January  next  succeeding  tlieir  election ;  provided,  that  tiie  six 
associate  justices  elected  at  the  first  election  shall  at  their  first 
meeting  so  classify  themselves,  by  lot,  that  two  of  them  shall 
go  out  of  office  at  tlie  end  of  four  j^ears,  two  of  tliem  at  the  end 
of  eight  years,  and  two  of  them  at  the  end  of  twelve  years.  If 
a  vacancy  occur  in  ihe  office  of  a  justice,  the  governor  shall  ap- 
point a  person  to  hold  the  office  until  the  election  and  (lualifica- 
tion  of  a  justice  to  fill  the  vacancy,  which  election  shall  take 
place  at  the  next  succeeding  general  election;  and  the  jus  ice 
BO  elected  shall  hold  the  office  for  the  remainder  of  the  unex- 
pired term.  The  first  election  of  justices  under  the  present  con- 
stiiution  was  had  at  the  first  general  election  after  the  adoption 
and  ratification  of  the  constitution  of  1879. ^ 

§  36.  Jurisdiction  of  California  Supreme  Court. — In 
general,  the  supreme  court  of  California  is  clothed  by  the  con- 
stitution with  the  powers  and  jurisdiction  of  the  courts  of 
chancery  and  of  king's  bench  in  England. ^  Its  jurisdiction  is 
orig  nal  to  a  certain  extent,  but  mainly  appellate.  Tie  consti- 
tution gives  it  api^ellate  jurisdiction  in  all  cases  in  equity,  ex- 

»  California  ConRtifuion  (1879),  art.  6,  sec  2,  «  Id.,  sec  8. 

*  Ex  parte  Attoruey  Guuerai,  1  Cul.  85. 


JURISDICTION. 


18 


cept  such  as  arise  in  justices'  courts ;  also  in  all  cases  at  law 
which  involve  the  title  or  possession  of  real  estate,^  or  the 
legality  of  any  tax,  impost,  assessment,  toll,  or  municipal  fine, 
or  in  which  the  demand,  exclusive  of  interest  or  the  value  of 
tiie  property  in  controversy,  amounts  to  three  hundred  dollars ; 
also  in  cases  of  forcible  entry  and  detainer,  and  in  proceedings 
in  insolvency,^  and  in  all  such  probate  matters  as  may  be  pro- 
vidtd  by  law  ;3  also,  in  all  criminal  cases  prosecuted  by  indict- 
ment or  information  in  a  court  of  record  on  questions  of  law 
alone.*  The  court  also  has  power  to  issue  writs  of  mandomuSj 
cerliorari^  prohibition,  and  habeas  corpus,  and  all  other  writs 
necessary  or  proper  to  the  complete  exercise  of  its  appellate 
jurisdiction.^  Each  of  the  justices  has  power  to  issue  writs  of 
habeas  corpus,  upon  petition  by  or  on  behalf  of  any  person  held 
in  actual  custody,  and  may  make  such  writs  returnable  before 


1  In  actions  for  damagps  to  real 
property,  wlien  the  question  of  title 
IS  iiivolvrd,  il  iiMS  appi  Hate  jurisdic- 
tion, although  the  dainnges  claimed 
are  less  than  thre«  hundred  dollars: 
Doherty  v.  TliHyer,  31  Cal.  140. 

»  C  'riant  V.  Conant,  10  Cal.  249,  ap- 

f roved  in  PiTtv  v.  Ames,  26  Id.  384; 
eople  V.  Ros'borough.  29  Id.  418; 
Courtwright  v.  Bear  River  and  Au- 
burn Water  and  Miwing  Co.,  30  Id. 
579,  affirmed  in  Kriowles  v.  Yates, 
81  Id  84;  Dumphy  v.  Guindon,  13 
Id.  30  So  in  cases  of  divorce: 
Conant  v,  Conant,  10  Id,  249.  So  in 
ca^es  of  contested  elections  on  appeal 
Irom  countv  courts:  Middleton  t. 
Gould,  6  Id".  190;  Knowles  v.  Yates, 
81  Id.  82,  affirmed  in  Day  v.  Jones, 
Id.  2*58.  On  questions  of  fraud  macje 
in  petition  of  insolvent  debtor:  Fisk 
V.  His  Creditors,  12  Id.  281,  approved 
in  People  v.  Shepard.  28  Id.  715;  Peo- 
ple V.  Rosborough,  29  Id.  418.  As  to 
appellate  jurisdiction  generally,  see 
Houghton's  Appeal,  42  Id.  35. 

•  The  appellate  jurisdiction  of  the 
supreme  court  in  probate  matters  is 
regulated  by  sec.  963,  subd.  3  of  the 
code  of  civil  procedure. 

*  The  supreme  court  may  exercise 
its  appellate  jurisdiction  in  criminal 
cases  confined  to  felony:  People  v. 
Applegate,  5  Cal.  295;  affirmed  in 
People  V.  Vick,  7  Id.  165;  People  v. 
Johnson,  80  Id.  101 ;  People  v.  Shear, 
7  Id.  139;  People  v.  Fowler,  9  Id.  86; 
People  V,  Apgar,  35  Id.  389 ;  see  also 
People  V.  Cornell,  16  Id.  187;  People 
V.  \Var,  20  Id.  117 ;  People  v.  Burney, 
29  Id.  459;   People  v.  Jones,  81  Id. 


576.  The  question  whether  the  su- 
preme court  has  juri8<iietii>n  to  review 
criminal  cases  upon  questions  of  fact, 
raided,  but  not  decided  :  People  v. 
Dodge,  30  Id.  455.  From  a  judgment 
convicting  a  person  of  contempt,  and 
imposing  on  him  a  fine  exceeding 
three  hundred  dollars,  no  appeal  lies. 
Although  contempt  proceedings  are 
criminal  in  their  nature,  they  are  not 
prosecuted  by  indictment  or  informa- 
tion :  Tvler  v.  Connolly,  1  West  Coast 
Rep,  779. 

*  The  supreme  court  has  original 
jurisdiction  to  issue  writs  of  habeas 
corpus,  mandamiis^eertlurari,  and  pro- 
hibition, and  may  exercise  its  appel- 
late jurisdiction  by  means  of  such 
writs:  Ex  parte  Attornev  General,  1 
Cal.  87;  Warner  v.  Hrill,  Id.  90; 
Warner  v.  Kelly,  Id.  91 ;  Tvler  V. 
Houghton,  25  LI.  28;  Miller  v."  Boar* 
of  Supervisors  S  ic.  Co.,  Id.  93 ;  People 
V.  Loucks,  28  Id.  71 ;  Courtwright  v. 
Bear  Riv.  and  Aub.  Wat.  and  Min. 
Co.,  30  Id.  585;  Perry  v.  Ames.  2i 
Id.  383;  Caulfield  v.  Hudson,  8  Id. 
389;  Reed  V.  McCormick,  4  Id.  342; 
Parsons  v.  Tuolumne,  5  Id.  43 ;  Towns- 
end  V.  Brooks,  Id.  52 ;  Zander  v.  Coe, 
Id.  230;  People  V.  Applegate,  Id.  295; 
People  V.  F*wler,  9  Id.  86;  People  v. 
Turner,  1  Id.  143;  White  v.  Light- 
hall,  Id.  847 ;  Purcell  v.  McKune,  14  Id. 
230;  Flaglev  r.  Hubbard,  22  Id.  88; 
Milikin  V.  Huber,  21  Id.  169;  Lewis 
v.  Barclay,  35  Id.  913,  approving 
People  V.  Weston,  28  Id.  639 ;  Adams 
V.  Town,  3  Id.  247 ;  Cowell  v.  Bucke- 
lew,  14  Id.  642;  Hyatt  v.  Allen,  54 
Id.  358. 


14  GENERAL  PRINCIPLES.  §  37. 

himself,  or  the  supreme  court,  or  before  any  superior  court  in 
the  state,  or  before  any  judjj^e  thereof.* 

§  37.  The  Same — Legislative  Power  over. — The  lej^isla- 
ture  cannot  take  away  or  impair  the  appellate  jurisdiction  of 
the  supreme  court,  but  may  prescribe  the  mode  in  which  appeals 
may  be  taken.* 

§  38.  The  Same — Amount  in  Controversy. — The  appel- 
late jurisdiction  of  the  supreme  court  extends  to  all  actions  in 
which  the  demand,  exclusive  of  interest,  or  the  value  of  the 
property  in  controversy  amounts  to  three  hundred  dollars. ^ 
The  amount  sued  for,  and  the  value  of  the  property  in  contro- 
versy, is  thus  the  test  of  jurisdiction.'*  The  words  "  property 
in  controversy,"  as  thus  used,  mean  the  subject  of  litigation, 
the  matter  for  which  suit  is  brought.^  If  an  appeal  is  taken 
by  the  plaintiff  from  a  judgment  in  his  favor,  then  the  amount 
in  dispute  is  the  difference  between  the  amount  of  the  judg- 
ment and  the  sum  claimed  by  the  complaint.  But  if  the 
judgment  is  for  the  defendant,  the  jurisdiction  of  the  supreme 
court  is  determined  by  the  amount  claimed  in  the  complaint.' 
If  the  appeal  is  taken  by  the  defendant  from  a  judgment  in  his 
favor,  where  he  set  up  a  counter-claim,  the  amount  in  dispute 
is  the  difference  between  the  amount  of  the  judgment,  exclu- 
sive of  costs,  and  the  sum  claimed  in  his  counter-claim.  The 
interest  due  forms  no  part  of  the  amount  in  dispute ;  so,  also, 
costs  constitute  no  part  thereof.'''  Where  plaintiff  had  judgment 
against  defendant  for  six  hundred  dollars,  and  defendant  had 
judgment  in  the  same  court,  in  another  action,  for  one  hundred 
and  ten  dollars,  a  motion  by  plaintiff  that  defendant's  judgment 
be  set  off  against  plaintiff's  judgment  was  denied,  from  which  the 
plaintiff  appealed,  but  the  supreme  court  held  that  it  had  no  juris- 
diction, the  judgment  sought  to  be  set  off  being  less  than  three 
hundred  dollars. ^ 

§39.  Jurisdiction  of  Superior  Court  of  California. 
The  court  of  general  original  jurisdiction  in  California  is  called 
the  superior  court.  The  constitution  of  1879  abolished  the 
then  existing  district,    county,  and  probate  courts,   and  estab- 

iCal.  Const.  (1879).  art.  6,  sec.  4.  Gillespie  v,  Bonson,  18    Id.  409;  Za- 

«  HHiRht  V.  Gay,  8  Cal.300.  bri-kie  v.  Torrey.  20  Id.   174;   Yotaa 

«  California  Const.  (1879),   art.  6,  v.  Reese,  20  Id.  91. 

IPC.  4.  «  Skillman  v.  Lachman,  28  Cal.  198, 

♦  .Maxfleld  v.  John8on,30  Cal.  645;  '  Dumphy  v,  Guindon,  13  Cal,  28; 

Solomon  V.  Reese,  34  Id.  34,  Votan   v.  Reese,    20  Id.  89;  Zabrinkie 

»  Dumpily  V.  Guindon.  13  Cal.  28;  v.  Torrey.  Id.  173;  Maxfield  v,  John- 

afRrmed  in  Meeker  v,  Harris,  2'>  Id.  son,  30  Id.  545. 

286  i  Bolton  v.  Landers,  27  Id.  107 ;  ■  GranduU  t.  Blen,  15  Cal.  407. 


$  40.  JURISDICTION.  15 

lished  such  court  in  their  place,  combining  in  it  the  powers 
and  jurisdiction  which  had  been  previously  exercised  by  them. 
The  jurisdiction  of  the  superior  court  is  both  original  and  ap- 
pellate. It  has  original  jurisdiction  in  all  cases  in  equity,  and 
in  all  cases  at  law  which  involve  the  title  or  possession  of  real 
property,  or  the  legality  of  any  tax,  impost,  assessment,  toll, 
or  municipal  fine,  and  in  all  cases  in  which  the  demand,  exclu- 
give  of  interest,  or  the  value  of  the  property  in  controversy, 
amounts  to  three  hundred  dollars,  and  in  all  criminal  cases 
amounting  to  felony,  and  cases  of  misdemeanor  not  otherwise 
provided  for ;  of  actions  of  forcible  entry  and  detainer,  of  pro- 
ceedings in  insolvency,  of  actio  8  to  prevent  or  abate  a  nui- 
sance ;  of  all  matters  of  probate ;  of  divorce  and  for  annulment 
of  marriage,  and  of  all  such  special  cases  and  proceedings  as  are 
not  otherwise  provided  for.  It  also  has  power  to  naturalize 
aliens,  and  to  issue  papers  therefor.  Such  courts,  and  their 
judges,  have  power  to  issue  writs  of  mandnmus,  certiorari,  pro- 
hibition, quo  warranto,  and  habeas  corpus,  on  petition  by  or  on 
behalf  of  any  person  in  actual  custody  in  their  respective  coun- 
ties. Injunctions  and  writs  of  prohibition  may  be  issued  and 
served  on  legal  holidays  and  non-judicial  days.  They  have  ap- 
pellate jurisdiction  in  such  cases  arising  in  justices'  and  other 
inferior  courts  in  their  respective  counties  as  may  be  prescribed 
by  law.  They  are  always  open  for  the  transaction  of  business, 
and  their  process  extends  to  every  portion  of  the  state.  There 
is  a  superior  court  in  each  county  of  the  state.  The  number  of 
judges  belonging  to  the  respective  courts  varies  from  twelve  in 
the  city  and  county  of  Saa  Francisco,  to  one,  which  is  the 
number  in  most  of  the  counties.  A  judge  of  any  superior 
court  may  hold  a  supeiior  court  in  any  county,  at  the  request 
of  a  judge  of  the  superior  court  thereof,  and  upon  the  request 
of  the  governor  it  is  his  duty  so  to  do.^ 

§  40.  The  Sams — Jarisdictiou  in  General. — The  superior 
court,  like  the  district  court,  which  it  superseded,  is  one  of 
general  original  jurisdiction;  its  process  is  co-extensive  with 
the  state  f  and  the  regularity  of  its  proceedings  is  presumed.^ 
They  have  no  appellate  jurisdiction  except  such  as  is  conferred 
upon  them  by  the  constitution. ••    When  sitting  in  an  equity  ac- 

*  Cal.    Const.    (1879),   art    6,    sec  supervision  of    district   courts    over 

5_g  interior  tribunals,  see  Miiiken  v.  Hu- 

«  Reves  v.  Sanford,  5  ChI.  117.  bcr,  21  Id.  166. 

»  People  V.  Robinson,  17  Cal.  868,  ♦  IVople  v.   Peralta,    8    Cal.    879; 

approved  in   People  v.    R'^bin^on.  27  Canfield   v.  Hudson,  Id.    38»;    Her- 

Id.  67 ;    People  v-  Judge  Tenth  Jud.  nnndez  v.   Simon,  Id.  464 ;  Gray  ▼. 

Dist.,  9  Id.  19.    As  to  the   power  of  Schupp,  4  Id.  186 ;  Reed  v.  McCop* 


16  GENERAL  PRINCIPLES.  §  41. 

tion,  as  for  example  an  action  to  abate  a  nuisance,  the  court 
and  judge  are  possessed  of  all  the  powers  of  a  court  of  chan- 
cery.^ As  at  present  organized,  the  superior  courts  have  no 
stated  terms.  Formerly  the  district  courts  lost  all  power  over 
a  cause,  in  which  judgment  had  been  rendered,  upon  the  ad- 
journment of  the  term,  and  could  not  disturb  its  judgments 
except  in  cases  provided  by  statute.* 

§  41.  The  Same — Amount  in  Controversy. — In  actions 
for  the  recovery  of  money,  the  superior  court  has  jurisdiction, 
if  the  sum  sued  for  amounts  to  three  hundred  dollars,  exclusive 
of  interest,  regardless  of  the  sum  for  which  judgment  may  be 
obtained. 3  Where  the  principal  sum  sued  for  is  less  than  two 
hundred  dollars  (now  three  hundred  dollars)  the  superior  court 
has  no  jurisdiction.* 

§  42.  The  Same — Character  of  Action,  how  Deter- 
mined.— The  character  of  the  action  is  to  be  determined  by  the 
prayer  of  the  complaint.  Generally,  if  the  prayer  asks  for  a 
money  judgment,  it  is  an  action  at  law;  if  it  asks  for  the  fore- 
closure of  a  lien,  order  of  sale,  etc.,  it  is  a  suit  in  equity.  In 
the  former  the  superior  court  has  no  jurisdiction  where  the 
amount  is  less  than  three  hundred  dollars,  and  the  ad  damnum 
clause  is  the  test.^  In  the  latter  it  has  jurisdiction,  regardless  of 
the  amount  claimed.' 

§  43.  The  Same — Divorce. — In  a  suit  for  a  divorce,  and 
partition  of  the  property  acquired  during  coverture,  the  juris- 
diction of  the  superior  court  is  not  limited  as  to  the  amount.^ 
Superior  courts  have  jurisdiction  to  decree  relief  in  alimony  to 
the  wife,  in  a  separate  action,  unconnected  with  a  suit  for 
divorce.^    Or,  to  enforce  an  agreement  for  separation  and  ali- 

tnick,  Id.  342,  affirmed  in  Parsons  v.  affirmed  in  Carpentier  v.  Hart,  5  Id. 

Tuol  W.  Co.,  5  Id.  43 ;  Keller  v.  De  407;  Shaw  v.  McGregor,  8   Id,  521; 

Franklin,  Id.  432;    Becket  v.  Selover,  De  Castro  v.  Richardson,  25  Id.  62; 

7  Id.  2  to ;  and  People  V.  Fowler,  9  Id.  Casement  v.  Ringgold,   28   Id.   338; 

86;  Townsend  v.   Brooks,   5  Id.  62;  see  also  VVhipley  v.   Dewey,    17  Id. 

Zander  v.  Coe,   Id.    230;    People  v.  814. 

Applegate,  Id.  295,  affirmed  in  Peo-  3  Solomon  v.  Reese,  34  Cal.  28. 

pie  V.  Vick,    7  Id,  166;     People  v.  ♦  Arnold  v.  Van  Brunt,  4  Cal.  89. 

Johnson,  30  Id.  101 ;  People  v.  Shoar,  »  Maxfleld  v.  Johnson,  30  Cal.  645; 

7  Id.  140;  People  v.  Apgar,  85  Id  889.  Solomon  v.  Roese,  84  Id.  28. 

1  Sanford  v.  Head,  5  Cal.  297 ;  Peo-  «  People  v.  Mier,  24  Cal.  61,  affirmed 
pie  V.  Davidson,  80  Id.  380,  approved  in  Bell  v.  Crippen,  28  Id.  828;  Court- 
in  Courtwright  v.  B.  R  &  A.  W.  &  wright  v.  Bnar  River  and  Auburn 
M.  Co.,  Id.  585;  Mahlstadt  v.  Blanc,  Water  and  Mining  Co.,  80  Id»  581; 
84  Id.  577;  Courtwright  v.  B.  R.  &  Mahlstadt  v.  Blanc,  34  Id.  577. 
A.  W.  &  M.  Co.,  30  Id.  585;  '  Deuprez  v.  Deuprez,  5  Cal.  387. 
Wright  V.  Miller,  1  Sandf.  Ch.  «  Galland  v.  Galland,  38  Cal.  265, 
120;  Reigal  v.  Wood,  1  Johns.  Ch.  citing  Purcell  v.  Purcell,  4  Hen.  & 
401.  Munf.  507;    Almond   v.    Almond,    4 

«  Suydam    V.  Pitcher,  4  Oal.  280,  Rand.  662 ;  Logan  t.  Logan,  2  B.  Mon. 


§  46.  JURISDICTION.  17 

mony  in  connection.*  And,  in  general,  whenever  the  wife  is 
entitled  to  live  separate  from  her  husband,  by  reason  of  breaches 
of  matrimonial  duty  committed  by  him,  a  concurring  adjudica- 
tion must  be  pronounced  that  he  support  her  while  so  living.' 

§  44.  The  Same — Forcible  Entry  and  Detainer. — In 
Nevada,  district  courts  have  jurisdiction  in  actions  of  forcible 
entry  and  detainer.^  Previous  to  the  present  California  consti- 
tution, jurisdiction  in  such  actions  was  conferred  upon  the 
county  courts.  The  present  constitution  vests  it  in  the  superior 
courts,  subject  to  the  proviso  that  justices'  courts  shall  have  con- 
current jurisdiction  in  such  actions,  where  the  rental  value  of 
the  property  in  dispute  does  not  exceed  twenty-five  dollars  per 
month,  and  where  the  whole  amount  of  damages  claimed  does 
exceed  two  hundred  dollars.* 

§  45.  The  Same — Fugitives  from  Justice. — ^The  superior 
courts,  being  courts  of  general  original  jurisdiction,  exercising 
the  usual  powers  of  common-law  courts,  are  fully  competent  to 
hear  and  determine  all  matters,  and  to  issue  all  necessary  writs 
for  the  arrest  and  transfer  of  fugitive  criminals  to  the  authorized 
agent  of  the  state  from  which  they  fled,  without  any  special 
legislation  ;^  or  to  inquire  into  the  legality  of  their  detention 
under  a  requisition  from  a  governor  of  another  state.^ 

§  46.  The  Same — Abatement  of  Nuisances. — Under  the 
constitution,  the  superior  courts  have  jurisdiction  in  actions  to 
abate  a  nuisance.  Such  jurisdiction,  being  a  constitutional 
grant,  can  not  be  taken  away  by  the  action  of  the  legislature  in 
attempting  to  confer  exclusive  or  concurrent  jurisdiction  over 
such  cases  on  other  courts.'''  Actions  to  abate  a  nuisance  would 
ordinarily  be  included  within  the  equitable  jurisdiction  of  a 
court  clothed  with  such  power.  The  California  constitution, 
besides  granting  to  the  superior  court  general  legal  and  equita- 
ble jurisdiction,  has  specially  empowered   it  with  jurisdiction  of 

142;  Prather  v.  Prather,    4  Desaus.  477;  Peltier  v.  Peltier,  Harr.  (IKGh,) 

83;   KhaiiiHv.  Rhame,    1  McCord  Ch.  Ch.   19 

197;    Glover  V,  Glover,  16  AU  440  »  Hoopes  v.  Meyer,  t  Nev.  433. 

446.  'CHliforniaConsiitutioii  (>1879),  art. 

*  Galland  v.  Galland,  supra.  s<cs.  5.  11, 

«  2  Story's  Eq.  Jur.,  sees,  1422,  1424,  »  In  re  liomaine,    23  Cai.  585;.    106 

Fischli  V.  Fisc'hli,   1  Blackf.  800,  3G5;  Mass.  22-5, 

Chapman  v.  Cliapman,   13   Ind.  397;  *  Ex     parte   Robb,   1-  West    Coast 

Shannon  v.   Shannon.  2   Grav,    285;  Rep.   255,    nffirmed   in  Robb  v.  Gon- 

Sheafe  v,   Sheafe,  4  Fost.   514;    Par-  nolly.  U,  S.   Sup.  Ct.,  Oct,  T.  1«83, 

sons  V.  Parsons,  9   N.  H.   309;    Law-  overruling   Ex   parte  Robb,  1    West 

son  V.  Shotwell,   27  Miss.  630;  Doyle  Coast  Rep.  439 

V.Doyle,  26  Mo.  545;    Yule  v.  Yule,  'Fitzgerald  v.  Urton,   i  Cal.  235; 

2  Stoikt   138,  143;  Core  v  v.  Corey,  3  Courtwright  v.  Bear  River  and  Aub, 

Id.  400 ;  McGee  v.  McGee,    10  Ga.  Water  and  Mining  Co.,  8* Id.  673. 
ESTKB,  Vol-  I — 2 


ik  GENERAL  PRINCIPLES.  §  47. 

■actions  for  the  abatement  of  nuisances,  and  for  the  recovery  of 
•daraases  caused  thereby.  In  interpreting  the  constitutional 
(provisions  granting  such  jurisdiction,  and  in  order  to  give  effect 
•to  each,  it  has  been  held  in  a  very  recent  case,  that  in  hearing 
;ahd  determining  such  actions  the  superior  court  sits  as  a  special 
and  not  as  an  ordinary  equitable  tribunal ;  that  the  verdict  of  the 
jury  on  the  general  question  of  damages,  in  favor  of  the  plaintiff, 
•necessarily  is  a  finding  upon  the  right  of  the  plaintiff  to  an  abate- 
ment of  the  nuisance,  and  that  judgment  abating  such  nuisance 
may  be  entered  upon  such  verdict  without  any  other  finding  upon 
the  part  of  the  court.^ 

§  47.  The  Same — ^Partition. — ^The  superior  courts  have 
jurisdiction  of  actions  to  recover  one  half  of  the  value  of  a  par- 
tition fence,  although  the  amount  sought  to  be  recovered  is  less 
than  three  hundred  dollars  —  such  action  involving  title  to 
land.« 

§  48.  The  Same— Probate. — The  jurisdiction  of  the  su- 
perior court  of  California  over  the  settlement  and  distribution 
of  tlie  estates  of  decedents  is  twofold.  As  a  tribunal  possess- 
ing the  full  equity  jurisdiction  of  the  English  court  of  chancery, 
it  has  jurisdiction  of  an  ordinary  equitable  action  of  the  set- 
tlement of  the  estate  of  a  decedent,  notwithstanding  the  stat- 
utes of  such  state  have  provided  a  full  and  complete  system  for 
the  administration  of  such  estates.  As  the  successor,  under 
the  constitution  of  1879,  of  the  former  probate  courts,  it  pos- 
sesses jurisdiction  to  administer  such  estates  in  accordance  with 
the  statutory  system.'  The  facts  of  the  death  of  the  deceased, 
and  of  his  residence  within  the  county,  are  foundation  facts 
upon  which  all  subsequent  proceedings  of  the  superior  court, 
sitting  as  a  court  of  probate,  rest.*  Where  such  court  has  jur- 
isdiction of  the  subject-ra  itter,  all  intendments  are,  under  the 
statute,  in  favor  of  the  correctness  of  the  action  of  tlie  court,  the 
same  as  in  other  courts  of  record. ^  Thus,  letters  of  adminis- 
tration upon  an  estate,  granted  by  the  probate  court,  cannot  be 
collaterally  attacked  by  sliowing  that  the  last  residence  of  the 
deceased   was    not    in   that    country,    and    therefore   that   the 

*  Learned  v.  Castle,  3  West  Coast    Rystems  of  probate  on  the  equitable 
Rep.  154.  jurisdiction  of  thf  courts  of  the  vari- 

*  tlolman  v.  Taylor,  81  Cal.  838.         ous  states,  see  Pomeroy's  Eq.,   sees. 
«  In  re  Allgier,  2  West  Count  Hop.     847-352,  1163. 

876.    In  Koseiiborg  V.  Frank,  5H  Ctil.  ♦Haynes   v.    Mfi.*ks,    10    Cal.   110; 

8b7,   this  point  wm    exiimaod  wiili  Townsend  v.     Gordon,    19   Id.   205; 

great  care,  and   the  efFuct  of  the  slat-  E-itate  of  Harlan.  24  Id.  182. 

utory  system  of    probate    stated  as  »  Lucas  v.  Todd,  28  Cal.  182;  Irwin 

given  in  the  text.    F.tr  a  complete  v.  Scribe r,  18  Cal. 499. 
«zamiDatioa  of  the  effect  of  statuiury 


§  50.  JURISDICTIOli^.  19 

conrt  had  no  jurisdiction.*  The  probate  courts  had  no  jurisdic- 
tion to  administer  upon  the  estates  of  deceased  persons  who 
diid  prior  to  the  adoption  of  the  first  constitution  in  Califoraia; 
but  the  estates  of  deceased  persons  in  such  state,  who  died 
prior  to  the  passage  of  the  probate  act  of  1850,  and  subse- 
quent to  the  adoption  of  the  common  law,  can  be  administered 
on  in  accordance  with  the  provisions  of  the  probate  acts  in  force.' 

§  49.  The  Same — Taxes. — An  action  brought  before  the 
revenue  act  of  1861,  to  recover  judgment  for  unpaid  taxes,  is 
not  a  case  in  equity,  but  an  action  at  law,  and  where  the 
amount  is  less  than  three  hundred  dollars,  the  district  court  has 
no  jurisdiction.3  if^  however,  the  action  is  brought  under  the 
provisions  of  the  act  of  May  12,  1862,  it  is  a  case  in  equity,  and 
the  distiict  court  has  jurisdiction,  although  the  amount  claimed 
is  less  than  three  hundred  dollars.* 

§  50.  Jurisdiction  of  Justices'  Courts  in  California. — 
The  legislature  has  power  to  determine  the  number  of  justices 
of  the  peace  to  be  elected  in  townships,  incorporated  cities, 
and  towns,  or  cities  and  counties,  and  may  fix  by  law  the 
powers,  duties,  and  responsibilities  of  such  officers,  provided 
such  powers  shall  not  in  any  case  trench  upon  the  jurisdiction 
of  the  several  courts  of  record,  except  that  said  justices  shall 
have  concurrent  jurisdiction  with  tlie  superior  courts  in  cases 
of  forcible  entry  and  detainer,  where  the  rental  value  does  not 
exceed  twenty-five  dollars  per  month,  and  where  the  whole 
amount  of  damages  claimed  does  not  exceed  two  hundred  dollars, 
and  in  cases  to  enforce  and  foreclose  liens  on  personal  property 
where  neither  the  amounts  of  the  liens  nor  the  value  of  the 

*  Irwin   V.    Scriber,    18   Cal.    499,  beins:  filed  therein,  refused  to  take 

affirmed;  Halleck  v.  Moss,  22  Id.  276,  jurisdiction  of  the  enuse,  Hnd  ordered 

"Where  S.  dies  out  of  the  stnte,  leav-  the  papers  back:  Held,  that  the  pro- 

ing  property  in  Santa  Clara  county,  bate  court  of  SHntu  Clara  could  not 

and  the  probate  court  thereof  takes  divest  itself  of  jurisdiction,  and  vest 

Jurisdiction  of  the  estate  and  grants  it  in  the  probate  court  of  San  Fran- 

etters  of  administration  to  K. ;   the  cisco;   and   that  mandamus  will   not 

■widow  subsequently  files  a  petition  to  issue  to  compel   the  latter  court  to 

revoke    the    letters,  on    the  ground  take    jurisdiction.    Estate    of   Scott, 

that  the  probate  court  of  San  Fran-  15  Id.  220. 

Cisco    ought   to    have    issued    them,        '  Downer   v.   Smith,   24    C«l.  114, 

whereupon  the  administrator  asks  the  commented   on  in   People  v.'Senter, 

court   to    transfer   the  cause  to  that  28  Id.  50),  and   approved  in  Coppin- 

court,   representing  that  the    widow  ger  v.  Kice,  33  IH.  423. 
and  a  nmjority  of  the  witnesses  reside        'People  v.    Mier,   24  Cal.   61,   at 

there,  and  that  the  interest  of  several  firmed  in  B.  11  v.  Crippen,  28  Id.  327; 

persons  interested  in  the  estate  would  Courtwritiht  v.  Bear  River  and  Aub. 

be  advanced  by  the  transfer,  to  which  Water  and   Mining  Co.,  30   Id.  fi81; 

both  parties  agreed;  the  court  made  and  MihlstHdt  v  Blanc,  34  Id.  680. 
an   order  to    transfer.     The   probate        *  Boll  T.  Crippen,  28  Cal.  327. 
court  of  San  Francisco,  on  the  papers 


20  GENERAL  PRINCIPLES.  §  50. 

property  amounts  to  three  hundred  dollars.*  In  addition  to 
the  jurisdiction  given  thtm  concurrent  with  the  superior  courts, 
justices'  courts  Lave  civil  jurisdiction  within  their  respective 
townships  or  cities,  in  actions  arising  on  contracts  for  the  re- 
covery (f  money  only,  if  the  sura  cla  med,  exclusive  of  interest, 
does  not  amount  to  three  hundred  dollars ;  in  actions  for  dam- 
ages for  injury  to  the  person,  or  for  taking,  detaining,  or  injur- 
ing personal  property,  or  for  injury  to  real  property  where  no 
issue  is  raised  by  the  verified  answer  of  the  defendant,  involv- 
ing the  title  to  or  possessidn  of  the  same,  if  the  damages 
claimed  do  not  amount  to  three  hundred  dollars ;  in  actions  to 
recover  the  possession  of  personal  property,  if  the  value  of 
such  property  does  not  amount  to  three  hundred  dollars ;  in 
actions  for  a  fine,  penalty,  or  forfeiture,  not  amounting  to  three 
hundred  dollars,  given  by  statute,  or  the  ordinance  of  an  in- 
corporated city  and  county,  city  or  town,  where  no  issue  is 
raised  by  the  answer  involving  the  legality  of  any  tax,  impost, 
assessment,  toll,  or  municipal  fine;  in  actions  upon  bonds,  or 
undertakings  conditioned  for  the  payment  of  money,  if  the  sum 
claimed  does  not  amount  to  three  hundred  dollars,  though  the 
penalty  may  exceed  such  sum ;  to  take  and  enter  judgment  for 
the  recovery  of  money  on  the  confession  of  a  defendant,  when 
the  amount  confessed,  exclusive  of  interest,  does  not  amount 
to  three  hundred  dollars.^  Such  jurisdiction  does  not  extend, 
however,  to  any  action  or  proceeding  against  ships,  vessels,  or 
boats,  for  the  recoverj'^  of  seamen's  wages  for  a  voyage  per- 
formed in  whole  or  in  part  without  the  waters  of  the  state.' 
The  civil  jurisdiction  of  such  court  extends  to  the  limits  of  the 
city  or  township  in  which  they  are  held,  but  mesne  and  final 
process  may  be  issued  to  any  part  of  the  county  in  which  they 
are  held.*  A  justice  of  the  peace  has  no  power  to  vacate  or  set 
aside  a  judgment  rendered  by  him,  except  upon  a  motion  for  a 
new  trial.5 

1  California    Const  (1879),   art  6,  Code  of  Civil  Procedure.     As  to  the 

BPO.  11.  organization  of  justices'  courts  in  the 

•  Code  of  Civil  Proc,  sec   12.  city  and   county  of    San   Francisco, 
»  Code  of  Civil  Proc,  sec.  1L4.  under  the  consolidation  act,  see  Har- 

♦  Code    of  Civil    Proc,    sec.    106.  ston's  Pnictice,  6fi,  et  seq. 

The  criminal  jurisdiction  of  justices'  *  Winter  v,  Fitzpatrick,  86  Cal, 
courts  is  fixed  by  section  115  of  the    269, 


52.  PLACE  OP  TRIAJU  21 


CHAPTER  III. 
PLACE  OF  TRIAL. 

§  51.  Place  of  Tiial — ^In  General. — ^The  remedy  being 
selected,  and  the  jurisdiction  of  the  various  courts  being  fixed, 
the  next  inquirj^  is  in  what  county  shall  the  proceedings  be  had. 
The  code  of  civil  procedure  of  California  provides  that  actions 
must  be  tried  in  a  particular  county  or  district,  having  reference: 
1.  To  the  place  where  the  subject-matter  in  controversy  is 
situated  ;  or  2.  To  the  place  where  the  cause  of  action  arose ;  or, 
8.  To  the  place  where  the  parties  to  iLe  action  reside,  according 
to  the  nature  of  the  questions  involved.  Thus,  real  actions,  or 
actions  affecting  real  property,  have  a  tendency  to  a  fixed  and 
local  jurisdiction ;  while  personal  actions  are  transitory  in  their 
character. 

§  52.  Actions  to  be  Tried  where  the  Subject-matter  is 
Situated. — The  actions  which  are  to  be  tried  where  the  subject- 
matter,  or  some  part  thereof,  is  situated,  subject  to  a  change  of 
the  place  of  trial,  are  as  follows:  Acticms  for  the  recovery  of 
real  property,  or  of  an  estate  or  interest  therein,  or  for  the  de- 
termination, in  any  form,  of  such  right  or  interest,  and  for 
injuries  to  real  property ;  actions  for  the  partition  of  land;  ac- 
tions for  the  foreclosure  of  all  liens  and  mortgages  on  real  prop- 
erty. Where  the  real  property  is  situated  partly  in  one  county 
and  partly  in  another,  the  plaintiff  may  select  either  of  the 
counties,  and  the  county  so  selected  is  the  proper  county  for  the 
trial  of  such  action. ^ 

By  the  laws  of  Oregon'  and  of  lowa,^  the  recovery  of  personal 
property  is  included  in  this  section,  and  is  made  a  local  action ; 

*  Crtl.  Code  of  Civil  Proc.,  sen.  392;  applies  to  the  commencpment  of  the 

N.  Y.  Code,  sec.  123;  N«sh'sOhio  PI.,  action.     It  does  not  prevent  h  chrtiige 

p.  l'».  17;  WKsh.Tfr.,  sec.  37;   Idaho,  of  venue,  whenacau-se  therelor  exits, 

sec  18;  Ariz.,  sec.  18      In  C.ilitbrnia  siich  as    the    disqualificHtion   of    the 

the  constitution  of  1879,   art.  6,    sec  juda^e  of  the  county  in  which  the  land 

5,  provide*  that  all    actions    for  the  is  situMted:     Hancock  v.   Burton,  61 

recovery  of  the  possession  of,  quieting  C«l   70. 

the  title  to,  or  for  the  enforcem-'nt  of        In    WHshington     Territory   all  ac- 

liens  upon  real  estitte,  shnll    he  com-  tions  for  the   causes     mentioned     in 

menced  in   the   county  in  which   the  section   48,    laws    of    1877,    must  be 

re!«l  estate  or  any  part  thereof  htfected  commenced  in  the  county  or  district 

hy  such  action  or  actions,  is  sitUJited.  in  which  the  subject  of  the  a.ction  lies. 

Wlieihif.   in   view  of  this    constilu-  The  court  of  no  other  county  or  dis- 

tioiiMl  provision,    a  court  other  thm  trict  has  iurisdiction  thereof:    Wood 

the  one  designated  therein  would  have  v.  M  uticii,  2  West  Coast  Rep.  649. 
jurisdiction  of  an  action  affecting  real        *  Sec.  41. 
estate  commenced  out  of  such  county,         •  Sec.  2795. 
quaere.  Such  provision,  however,  only 


82  GENERAL  PRINCIPLES.  §  53. 

while  the  laws  of  Arizona  inclu'le  mining  claims,  but  make  no 
provision  for  the  contingency  of  the  property  or  estate  lying  in 
contiguous  counties.!  In  California,  also,  mining  claims  are 
incliKied  under  the  provisions  of  tliis  section.*  And  while  ifc 
provides  for  the  trial  in  certain  counties,  the  situation  of  the 
premises,  not  the  residence  of  the  parties,  determines  the  county.* 

The  statutory  requirements  do  not  apply  to  actions  for  lands 
Ijing  out  of  tlie  state.*  But  to  actions  for  the  possession  of  real 
property  within  the  state.*  Or,  for  the  determination  of  a  right 
of  interest  therein.'  Or,  for  the  recovery  of  title  thereto.'  Or, 
for  the  foreclosure  of  mortgages  thereon.* 

§  53.  Actions  against  Counties  may  be  commenced  and 
tried  in  any  county  in  the  judicial  district  in  which  such  county 
is  situated,  unless  such  action  is  between  counties,  in  which 
case  it  may  be  commenced  and  tried  in  any  county  not  a  party 
thereto.^ 

§  54.  Actions  to  be  Tried  where  Cause  of  A:;tion 
Aros3. — Actions  must  be  tried  in  tlie  county  where  the  cause, 
or  some  part  thereof,  arose,  subject  to  the  power  of  the  court 
to  change  the  place  of  trial,  where  the  same  is  for  the  recovery 
of  a  penalty  or  forfeiture  imposed  by  statute ;  except  that,  where 
it  is  imposed  for  an  offense  committed  on  a  lake,  river,  or  other 
Stream  of  water,  situated  in  two  or  more  counties,  the  action 
may  be  brought  in  any  county  bordering  on  such  lake,  river,  or 
stream,  and  opposite  to  the  place  where  the  offense  was  com- 
mitted ;  and  where  the  ai-tion  is  against  a  public  officer,  or  per- 
son especially  appointed  to  execute  his  duties,  for  an  act  done 

*  Code  of  Arizona,  oec.  18.  water  from  the  plaint! fTs  ditch  may 
'  VVkHs  v.  Wl»ii«^,  13  C«1.321.  be  brouijht  in  eiihor  of  the  couiiii«s  in 
«  Doll  V.  Feller,  16  Cal.  483.  wliii'hsuchiiitc!h  is  situated,  ailhoiii^h 

*  Newton  V.  Bronson,  3  Kern. 587;  the  defeiidHnt's  plnce  ol  business  is  in 
Mu-^ina  V.  Be, den,  6  Abb.  I'r.  It)5.  the  oili(!r  county  where  the  act   coni- 

'  Mtirs  V,  Rnmsen,  3  Code   li    138,  plnined  of    was   committed:     Lower 

«  Wood  V.  Hollister,  3  Abb.  I*r.  H;  kinj^'s  River  etc,  Co.  v.   Kitiij's  iliver 

StH.lts  V.  Bates,  12  How.  Pr.  4')5.  etc.  0.)..  tiO  Cal.  408;   People's  Diich 

'  Ring  V.    McCoun,  3  Sandt.   524;  Co.  v.  King's  River  etc.  Co.,  1    West 

Wood   V.   Hollister,  3   Al.b.  Pp.    14;  Coast  Rep.  473. 
Newton  V.  Bnmson,  13  N   Y.  587.  *  California  Code  Civil    Proc,  8ec. 

8  Vallejo  V.    Raiidull,  5  Cal.    461;  894.     In  the  absence  of  special   staiu- 

Maish    V.    Lowrv,  26  Barb.    197;    16  torv  provisiiHis,   such    suits  are    ^ov- 

How.     Pr.    41  ;  VVood  V,  Hollisier,   3  erned  by  the  usual  rules  of  civil  prac- 

Abh.Pr.  14;    but  see   Rawls  v.    ('arr,  tice;  and  where  a  cout)ty   was  sued  in 

17   Id.  9n;  Starks   v.  Bates,   12  How.  a  judicial  district  of  which  it  did  not 

Pr.  4ii5:  Rini:  v.  .McCoun,   3   Sundf.  form    a   pirt,  but  appeared   and  an- 

624.     A<  to  the   local  jurisdiction  of  BW"ied  without  objeclinaj   to    the  ju- 

tb"  same  tribunal  of  a    controversy  risdiction,  it  thereby  waived  the  riirht 

aff' clini;  iropertv    within    its   liiuiis,  to  a  chanije  of  venue   to  its  own  di  8- 

8ee  Nichols  V.  R  maine,  9  How.    Pr.  trict:  Clarke  v.  Lyon  County,  8  iJev. 

612.     An  action  tor  the  diversion  of  181. 


§  55.  PLACE  OP  TRIA.L.  f^ 

by  him  ia  virtue  of  his  office,  or  against  a  person  who,  by  his 
command  or  his  aid,  does  anything  touching  the  duties  of  such 
officer.^  These  provisions  have  been  held  not  to  apply  to  offi- 
cial neglects  or  omissions,  but  merely  to  affirmative  acts  of 
officers.'     Nor  do  they  apply  to  officers  of   the  United  States.^ 

§  55.  Actions  to  be  Tried  where  Defendants  Reside. — 
In  all  cases  except  those  above  mentioned  the  action  must  be 
tried  in  the  county  in  which  the  defendants  or  some  of  them 
reside  at  the  commencement  of  the  action ;  or  if  none  of  the 
defendants  reside  in  the  3tal«,  or  if  residing  in  the  state  and 
the  county  in  which  they  reside  is  unknown  to  the  plaintiff,  the 
same  may  be  tried  in  any  county  which  the  plaintiff  may  desig- 
nate in  his  complaint ;  and  if  the  defendant  is  about  to  depart 
from  the  state,  such  action  may  be  tried  in  any  county  where 
either  of  the  parties  reside,  or  service  is  had ;  subject,  however, 
to  the  power  of  the  court  to  change  the  place  of  trial.*  In 
actions  against  corporations,  the  principal  place  of  business  of 
the  corporation  is  its  residence, ^  and  the  action  should  be 
brought  there.  Action  for  divorce  by  a  wife  living  apart  from 
her  husbaud  may  be  brought  against  him  in  the  county  where 
she  resides.® 

Actions  to  recover  damages  for  injuries  to  the  person  should 
be  brought  under  this  section,^  and  also  actions  for  creating  a 
private  nuisance,  the  same  being  an  action  for  an  injury  to  the 
person.8  In  quo  warranto,  the  people  being  a  party,  their  resi- 
dence extends   to   every  county. ^     In  proceedings  for  a  man- 

*  California  Code  Civil  Proc,  sec  Pr.  543.  As  to  foreign  corporations, 
393;  N.  Y.  Co<lp,  sec.  124;  Oregon,  gee  International  Co.  v.  Sweetland, 
»€c.  42;  Wash.  Terr.,  see.  88;  Idaho,  14  Abb.  Pr.  240.  As  to  the  residence 
see.  I'.t;  Ariz.,  lil.  In  Ohio  and  Iowa,  of  railroad  corporations,  see  Vermont 
in  addiiion,  "an  action  on  the  official  11.  R.  Co.  v.  Not-thern  K.  K.  Co.,  6 
bond  of  an  offiefr:"  Nash's  Ohio  IM.,  How.  Pr.  106;  Sherwood  v.  Saratoga 
8ec.  47;  Iowa  Code,  sec.  279i>;  also,  R.  II.  Co.,  15  linrh.  650;  Belden  v. 
P,.ik  V.  Carnley,  7  How.  Pr.  8o5;  N.  Y.  &  Harl.  R.  R.  Co.,  15  How. 
Pt-ople  V.  Haves,  Id.  248;  Brown  v.  Pr.  17;  People  v.  Pierce,  81  IJarb. 
Smith,  24  B^lb.  41^);  Hnwland  v.  1 '.8;  Conroe  v.  Nat,  Pro.  Ins.  Co.,  10 
W'i  letts,  5  Sandf.  219,  affirmed  in  How.  Pr.  403;  Hubhard  v.  Nat.  Pro. 
5  S<^\d.  170;  Porter  v.  Pillsburv,  11  Ins.  Co.,  II  Id,  119;  see.  however, 
H  'w.  Pr.  240;  People  v.  Cook.  6  Id.  Pond  v.  Hudson  River  R.  R.  Co.,  IT 
448;  Hou<k  v.  Lasher,  17  Id.  520.  Id.  543. 

*  i<;iliotL  V.  Croiik's  Adm'r,  18  Wend.        *  ilurieau  v,  Harteau,  14  Pick.  181  }; 
85;  Hopkin-»   v.    Hnvwiod,    Id.  2()5;  Jennev  v.  .lenney,  14  Ma!-s.  231 ;  2  Id, 
McMillan  V.  Richards  9  Cal.  420.  15:1  Ift'i;  8    Id.    184;    2  Con).  &  H." 

*  Kreer.ian  v.  RoMnson,  7  Ind.  821.        nofs.  879;  9  Greeid.  147;    Veiue  V, 
*Cal,  Code  of  Civi.  Proc.  sec.  895;     Vence.  15  How.  Pr,  497;  Id.  57ti, 

N.  Y.  Code,   see.    125;    Orej^on,    sec.  ^  Melvor  v.  McCabe,    16    Abb.  Pr* 

43;  Idiho,  sec  20;    Arizona,  sec,  20.  819. 

*  .Jenkins  v.  (!al.  Sieam  Nav.  Co.,  *  R;iy  v.  Sellers,  1  Duvall  (Ky.V 
22  Cal.   537:   Hul.hard   v.  Nat.    Pro.  254. 

Ins.  (^o„  11  Hw.  Pr.  149;  Pond  v.  » People  v.  Cook,  6  How.  ?v.  448. 
Hudson  River  R.  R.    Co.,    17    How. 


24  GENERAL  PRINCIPLES.  §  56. 

damtis  to  compel  the  execution  of  a  sheriff's  deed  to  a  redemp- 
tioner,  the  action  may  be  commenced  in  the  county  where  the 
relator  resides.^  The  writ  of  habeas  corpus,  however,  should  not 
issue  to  run  out  of  the  county,  unless  for  a  good  cause 
shown. ^ 

§  56.  Change  of  Place  of  Trial. — After  service  of  sum- 
mons and  copy  of  complaint,  the  attorney  for  defendant  should 
make  inquiry  by  examining  the  complaint  as  to  whether  the 
action  is  brought  in  the  proper  county,  and  if  it  is  not,  and  a 
change  of  venue  is  desired,  the  first  thing  to  be  done  is  to  move 
the  court  for  a  change  of  the  place  of  trial.  This  may  be  done 
upon  affidavit  of  merits  and  notice  to  the  plaintiff.  In  Califor- 
nia, the  notice  to  be  given  as  to  time  is,  five  davs  before  the 
time  ap|)ointed  for  the  hearing,  when  the  court  is  held  in  the 
same  district  with  both  parties ;  otherwise,  ten  days,  unless  the 
notice  is  served  by  mail.^ 

§  57.  The  Cause. — If  the  county  in  which  the  action  be 
commenced  is  not  the  proper  county  for  the  trial  thereof,  the 
defendant  has  a  statutory  right  to  have  the  same  transferred  to 
such  county.'*  It  may,  however,  be  tried  in  the  county  in 
which  the  action  is  brought,  unless  the  defendant,  at  the  time 
he  appears  and  answers  or  demurs,  files  an  atfilavit  of  merits, 
and  demands,  in  writinjj,  that  the  trial  be  had  ia  the  proper 
county.^  Besides  the  right  of  the  defendant  to  a  change  of 
venue  because  tlie  county  designated  in  the  complaint  is  not 
the  proper  county,  the  court  may  also,  on  motion,  clia  ige  the 
place  of  trial  when  there  is  reason  to  believe  that  an  impartial 
trial  can  not  be  had  therein ;  when  the  convenience  of  wit- 
nesses and  the  ends  of  justice  would  be  proraoteil  by  the 
change;  and  when  from  nnv  cause  the  judge  is  disqualified  from 
acting.'  If  the  defendant  desires  a  change  of  the  place  of  tri;tl, 
on  the  ground  that  the  county  designated  in  the  complaint  is  not 
the  proper  county,  he  must  demand  a  transfer  at  the  time 
he  appears  by  demurrer  or  answer.     If  his  m  ^tion  to  change 

1  McMillHn  v.  Richards.  9  Cal.  420.  perform  an  cs:     Ri>binson  v.   Flint,   7 

«Ex  pune  Ellis,    11   Cal.  225.     In  Abt>.  Pr  :!93,  note. 

New   York,  where  the  parties  reside  '  Call  oniirt  Code   C.   P.,  sen.   1005. 

in  ditlV-reiit  ct)UiitiP8  the   suit    shill  As  to  w.ii'-h  ia  the  proixT  coiiiity,  see 

be  eoinmenped  in  the   county  whi-re  Cal.  C<>  le  G.  P..  8pcs.  39i-M9o. 

the  principnl  transaction  occurred,  or  *  B>iii»^y  v.    Sloan,    1    West   Coast 

where  it  appears  the  largi'st  nuniher  Rep.  472. 

of  witnesses  reside:  Jordan  v.  Garri-  *  Cidifornia  Code  C.  P.,  Si'cs.  SOf?. 

son,  ti  II"W.    Pr.   6.     "Transaction,"  »  CHlifoniiii   Code   C.  P.,  iscc.  307; 

when  relating  to  a  contract,  includes  Idaho,  sec  21;    Arizona,  sec.  21;    N. 

the  whole  proceeding,  beginnins;  with  Y.  Code,  sec.  987. 

the  negotiation,  and  ending  with  the 


§  59,  PLACE  OF  TRIAL.  25 

*he  place  of  trial  is  brought  to  a  hearing  before  he  has 
answered,  the  plaintiff  can  not,  by  a  cross-motion,  demand  the 
retention  of  the  action  in  the  county  where  it  is  pending,  on 
the  gi'ound  of  convenience,  etc.^  It  is  only  in  cases  where  the 
change  is  asked  because  the  county  designated  in  the  complaint 
is  not  the  proper  county  that  the  motion  for  the  change  must 
precede  or  accompany  the  answer  or  demurrer.  The  motion 
may  be  made  by  the  defendant,  on  any  other  statutory  ground, 
without  the  affidavit  and  demand,  within  a  reasonable  time  after 
his  appearance.  Such  motions,  however,  being  dilatory,  must 
be  prosecuted  with  diligence.^ 

§  58.  The  Same — The  Plaintiff  in  an  Action  may  have 
the  Place  of  Trial  Changed  upon  a  proper  showing,  and 
upon  a  proper  showing  it  is  error  in  the  court  to  refuse.^ 
Where,  however,  there  are  conflicting  grounds,  or  if  the  motion 
be  made  on  the  ground  of  the  convenience  of  witnesses,  and 
there  are  conflicting  affidavits,  the  court  may  exercise  its  discre- 
tion, and  its  ruling  will  not  be  disturbed  except  in  cases  where 
this  discretion  has  been  abused.^  The  mere  preponderance  of 
witnesses  on  one  side  is  not  necessarily  decisive  of  the  motion. ' 
Nor  is  the  court  bound  of  its  own  motion  to  change  the  venue. 
The  right  to  a  change  is  a  mere  privilege  which  may  be  waived.* 

§  59.    Demand  for  Change. 

Form  No.  1. 

[TlTLB] 

I   hereby   demand  that  the   place  ot  trial  of  this   cause  bo 

changed  to  the  proper  county,  viz.,  the  couuty  of 

[Datk.]  [Signatukk.] 

[APDRKSS.] 

In  New  York,  to  procure  a  change  of  the  place  of  trial,  in 
case  the  county  named  is  not  the  proper  county,  a  demand  is 
first  necessary,  the  service  of  which  is  an  essential  prerequisite 
to  the  motion.'  And  if  the  plaintiff  fails  to  consent  to  the  de- 
mand, application   must   be  made  to  the  court.^    A  demand  is 

>  Tooms    V.   Randall,   3   Cal.    438 ;  Peflrkes  v.  Freer,  9  id.  642.     It  may 

Keyes  V.  Saiiford.  5  Id.  117;   PeHrkes  be  remarked  that,  as  this  proceeding 

V.  Freer,  9  Id.  642;  Jones  v.  Frost,  28  is  entirely  statuturv,  and   tlie   former 

Id.  246;    Mahe   v.   Reynolds,  38    Id.  practice  in   New  York  diflered  quite 

560;  Cook  V.  Pcnderirast,  61   Cal.  72;  materially  from  thiit  in  California,  the 

Heald  v.  Hendy,  3  West  Coast  Rtp.  decisions  in  New  York  have  nenenill^ 

102.  but  little  application  under  the  Cali- 

*  Cook  V.  Pendergast,  61  Cal.  72-78.  furniti  practice. 
•Grewellv.Walden,  23  Cal.  168.169.  'New   York    Code,   ed.   1877,   sec. 

*  Territory  V.  Kinney,  1  West  Coast  936;  Vermont  CcnirMl  Ji.  K.  Co.  v. 
Rep  801 ;  Territory  v  L«p  z.  Id.  821.    Northern  R.  R.  Co.,  6  How.  Pr.  106. 

^amchctt  V.  Finch.  47  Cal.  192;  «  .March  v.  Lowr\.  16  How.  Pr.  41; 
Cook  V.  Peiidersrast,  61  Id.  72.  26  Barb.  197;  Houck  v.  Lasber,   17 

•Watts    V.  White,    18    Cal.    824;    How.  Pr.  520. 


UjB  GENERAL  PRINCIPLES.  §  60. 

now  necessary  also  in  California,  where  the  ground  of  removal 
is  that  the  action  is  not  brought  in  the  proper  county.^  The 
object  of  the  demand  in  California,  however,  is  not  very  appar- 
ent, since  there  is  no  provision  for  removal  by  consent  as  under 
sections  985  and  986  of  the  New  York  code ;  nor  is  there  any 
provision  for  any  action  by  the  court  upon  the  demand,  nor 
does  the  demand  do  away  with  the  necessity  for  notice  of  the 
motion  to  change,  and  the  only  provision  authorizing  the  re- 
moval is  in  California  Code  of  Civil  Procedure,  section  397. 
*'  The  court  may  on  motion  change  the  place  of  trial,"  etc.  It 
has  been  held  by  some  of  the  district  courts  that  service  of 
notice  of  motion  to  change  the  place  of  trial  is  a  sufficient  de- 
mand. 

§  60.  Statement  in  D3mmnd. — In  the  demand  the  name 
of  the  proper  county  to  which  a  removal  is  sought  must  be  in- 
serted.* And  service  must  be  made  on  the  opposite  counsel 
before  the  time  for  answering  expires.'  But  it  may  be  made 
simultaneously  with  the  service  of  the  answer.*  But  not  after, 
although  defendant  answered  before  his  time  had  expired.* 
Either  party  may  move  when  an  impartial  trial  could  not  be 
had,  or  when  convenience  of  witnesses  would  be  promoted.* 
A  demand  specifying  an  improper  county  is  irregular.'  On  a  de- 
mand there  must  be  an  order  or  consent ;  mere  service  of  demand 
is  not  sufficient.^  In  a  demand  to  change  the  place  of  trial 
to  the  proper  county,  any  suggestion  as  to  which  is  the  proper 
county  is  surplusage.*  Under  the  present  New  York  code  the 
demand  must  specify  the  county  where  the  defendant  requires 
the  action  to  be  tried. '"  And  such  would  seem  the  better  prac- 
tice in  C.ilifornia. 

§  61.    Form  of  Notice. 

Form  No.  8. 
LTlTLB.J 

To ,  Attorney  for  Plain' iff. 

You  will  please  take  notice  that  the  defendant  will  move  this 

court,  at  the  court-room  thereof, ,  on  ihe day 

of ,  18....,  at  ten  o'clock  a.  m.  of  said  day,  or  as  soon 

*  Ante,  and  California  Code  C.  P.,  *  Uinchman  v.  Butler,  7  How.  Pp. 
sec  39tj.  4Hi. 

*  B«ardsley  v.  Dickerson,    4  How.  '  R-ardsley  v.  Dicki-rson,    4    How, 
Pr,  81.  Pr.  81. 

»  Milligan  v.   Brophy,    2   Code    R.  *  Ha->broiick  v.   M'Adam,    4   How. 

118.  Pr.  :Ui;  3  Code  R,  89. 

*  .Vfairsv.  Remsen,  8  Code  R.  138.  »  Pliilbrick    v.   Bo^d,   16  Abb.  Pr, 
»  Milligan  v.  Brophy,  2    Code  R  8-3. 

118.  ^  New  York  Code,  sec.  986. 


i  63.  PLACE  OF  TRIAL.  27 

thereafter  as  counsel  can  be  heard,  for  an  order  changing  the 
place  of  trial  of  this  action  to  the  superior  court  in  and  for  the 
county  of Said  motion  will  be  n^ade  upon  affida- 
vits, copies  of  which  are  herewith  served  up  )n  you,  and  upon 
the  demand  to  change  the  place  of  trial,  and  the  papers  on  file 
in  the  case,  upon  the  following  grounds:  — 

I.  That  the  property  in  controversy  is  situated  in  said 

county. 

II.  That  the  defendants  are  both  residents  of  said 

county. 

III.  That  this  is  an  action  against   defendant    for 

an  act  done  by  him  in  virtue  of  his  office,  said  defendant  being 
sheriff  of  county.  A.  B., 

[Date  ]  Defendants*  Attorney.* 

§  62.  Joiai3r  of  Defendants. — The  rule  is  well  settled  that 
all  of  the  defendants  must  join  in  the  application  for  a  chan2;e 
of  venue,  or  a  good  reason  shown  why  tliey  do  not ;  otherwise 
it  will  be  denied.^  The  motion  may  be  raride  by  one  of  several 
defendants  ^  on  notice  to  the  other  defen  lants,  unless  they  be 
in  default ;  or  a  defendant  subsequently  served,  after  a  similar 
motion  by  another  defendant  has  been  denied,  may  move  for  a 
change  of  i)laee  of  trial. ^  This,  however,  seems  questionable, 
and  can  not  be  done  where  part  of  the  defendants  live  in  the 
00  inty  where  the  action  is  biou:|ht,  if  the  m  )tion  is  made  on 
the  ground  that  the  action  is  not  brought  where  defendants  re- 
side.^ 

§  63.  Statement  of  Ground — Not  the  Proper  County 
from  Situation  of  Subject  matter. 

Form  No.  S, 

[Substitute  in  preceding  form.] 

That  this  is  an  action  for  the  recovery  of  real  property  [or  of 
an  estate,  or  interest  therein,  or  for  the  determination  in  some 
form  of  such  right  or  interest,  or  for  injuries  to  real  property], 
and  that  the  said  real  property  is  wholly  situate  in  the  said  last 
named  county  (Cal.  Code  C.  P.,  section  392,  subd.  1). 

[Or  th;»t  this  is  an  action  for  the  partition  of  real  property, 
which  said   property  is  wholly  situate   in   the   said   county  to 

*  The  applicant  may  give  other  stat-  '  Mnirs  v.  Rpmsen,  8  Code  R.  138; 

utory  reHsons,  acconling  to  the  facts  Job  v.   Butterfield,  1   Eiig.   Law  and 

in  e  ich  particular  case.  Eq.  417. 

a  Sailly  v.  Hutton,  6  Wpnd.  508;  ♦  N.  J.  Zinc  Co.  v.  Blood,  8   Abb. 

Lesjg    V.    Dnrsheim,     19     Id.     700;  Pr.  147. 

Welling  V.  Sweet.  1  H<.w.  Pr.  166;  »  See  California  Code  C.  P.,  sec.  395. 
Bimmous  v.  McDougall,  2  Id.  77. 


28  GENERAL  PRINCIPLES.  §  64.' 

which  the  desired  change  is  asked  (Cal.  Code  C.  P.,  sec.  392, 
subd.  2). 

[Or,  that  this  is  an  action  for  the  foreclosure  of  a  mortgage 
of  [or  lien  upon]  real  property,  and  that  the  land  in  s.iid  mort- 
gage [or  lien]  described  is  wholly  situate  in  said  last-named^ 
county]  (Cal.  Code  C.  P.,  sec.  3<J2,  subd.  3).i 

§  64.  The  Sama — Not  the  County  where  Cause  of  Ac- 
tion Arose. 

Form  No.  4* 

[Substitute  in  Form  No.  2.] 

That  this  is  an  action  for  the  recovery  of  a  penalty  or  for- 
feiture imposed  by  statute,  except,  etc.  (see  Cal.  Code  C.  P., 
sec.  303,  subd.  1)  •  and  that  it  arose  in  the  said  last-named 
county. 

Or,  that  this  is  an  acti)n  against  defendant  for  an  act 
done  by  him  in  virtue  of  his  office,   said  defendant  being  the 

of  said  last-named  county,  and  a  resident  thereof  (Cal. 

Code  C.  P.,  sec.  393,  subd.  2)  ;  [or  when  the  act  complained  of 
was  done  b}-^,  and  suit  was  brought  against  a  person  who,  by 
command  of  such  officer,  or  in  his  aid,  performed  the  act  which 
is  the  sut)ject  of  the  action,  add]  and  that  such  person  is  a  resi- 
dent of  the  last-named  county,  etc.* 

§  65.    Affidavit  on  the  Ground  of  Non-residence. 

Form  No  5. 

[TiTLB.] 

[Vknuk.] 
A.  B.,  the  defendant  in  the  above-entitled  action,  being  duly 
sworn,  deposes  ani  says  as  follows: 

I.  The  summons  and  complaint  in  this  action  were  served  on 
me  on  the  day  of  ,  18... 

II.  I  further  say,  that  I  have  fully  and  fairly  stated  the  case 

in  this  cause   to  G.  H.,  my  counsel,  who  resides  at  No , 

in street,  in  the  city  of ,  and  after  such 

statement  I  am  by  him  advised  and  verily  believe  that  I  have  a 
good  and  substantial  defense  on  the  merits  to  the  action. 

III.  All  the  parties  defendant  to  this  action  reside  in  the 
county  of ,  in  this  state. 

[Jurat.]  [Siqnaiure] 

*  Mi'iinjaicl.'umsaro  real  estate  within  case  there  is  no  discretion  in  the  court, 

the  niMMiiiiig  of  this  act,  and  are  g  "V-  ttii^  cliaiisie  beinsr  a  matter  of  right: 

enie'l  by  tliM  provi-ionsof  this  .•'eciioi.  Walts  v.  White,  13  (Jal.  8"J1. 

Where  a  suit  for  real  t-state  is  brought  *  It  is  not  expf'cted  that  each  form 

in    the  wrong  countv,    a   motion   to  given  will  exactly  fit  each  ca^»e.  as  it 

change  the  venue,  and  not  a  demurrer,  arises  in  the  practice — but  the  general 

is  the  proper  remedy.    Atid  in  such  form  i  deemed  correct. 


§  69.  PLACE  OP  TRIAL.  29 

§  66.  The  Same— Affidavit  of  Merits. — An  affidavit  of 
merits,  which  declares  "that  the  defendant  has  fully  and  fairly 
stated  the  case  to  his  counsel,  and  that  he  has  a  good  and  sub- 
stantial defense  on  the  merits  to  the  whole  of  the  plaintiff's 
demand,  as  he  is  advised  by  his  counsel,  and  verily  believes 
to  be  true,"  is  sufficient.^  The  affidavit  of  merits  must  be  made 
and  served  with  notice  of  motion.^  It  is  a  common  and  con- 
venient practice  to  combine  the  affidavit  of  merits  with  the  affi- 
davit of  the  ground  on  which  the  motion  is  made,  where  the 
latter  does  not  appear  upon  the  face  of  the  complaint,  and  has 
to  be  estal)lished  by  affidavit. 

§  67.  The  Same — Residence  of  Parties. — The  principal 
place  of  business  of  a  corporation  is  its  residence,  within  the 
me:ining  of  that  terra. ^  A  willful  or  careless  ignorance  of  the 
residence  of  the  defendant  does  not  put  it  in  the  power  of  the 
plaintiff  to  sue  him  in  any  county  of  the  state,  however  remote 
from  his  residence.  To  resist  the  application  of  the  defendant, 
the  plaintiff  should  have  shown  that  he  used  all  proper  diligence 
to  ascertain  the  residence  of  tlie  defendant  before  suit,  and 
failed. 4  The  motion  to  change  on  the  ground  of  non-residence 
of  defendant  can  not  be  resisted  on  the  ground  that  the  conve- 
nience of  witnesses  requires  the  action  to  be  retained  where  it 
is  commenced.  And  if  the  court  refuses  to  grant  the  change 
when  asked  for  on  such  ground,  where  the  motion  is  made  at 
the  time  of  defendant's  demurring  or  appearance,  it  is  ground 
for  reversal  on  appeal. ^ 

§  68.     Affidavit  on  Ground  of  Partiality  and  Prejudice. 

Form  No.  6. 
[Title.] 
[Venuk.] 
[Same  as  in  Form  No.  5,  down  to  III  j 

III.  I  have  reason  to  believe  and  do  believe  that  I  can  not 
have  a  fair  and  impartial  trial  in  said  court  in  which  this  action 
is  brought,  by  reason  of  the  interest,  prejudice,  and  bias  of  the 
people  of  said  county  [give  the  facts].  A.  B. 

[Jurat.] 

§  69.     The  Same — Circumstances  to  be  Stated. — It  is 

necessary  to  state  in  the  affidavit  facts  and  circumstances  which 

1  Butler  V.  Mitchell,  17  "Wis.  52.  »  Jenkins  v.  Cal.  Stage  Co.,  22  Cah 

»  Lynch  v.  Mosher,  4  How.  Pr.  8'5.  587 ;  see  ante. 
As  to  sufficiency  of  affidavit  ot  merits,  *  Lohr  v.  Latham,  15  Cal.  418. 
consult  Richards  V.  Sweetzer,  1  Code  'Cook  v.  Pendercast,  61   Cal.  72; 
R.  117;  Ellis  V.Jones,  6  How.  Pr,  296;  Bailey  v.  Sloan,  1  West  Coast  Rep. 
Rickards  v.  Sweetzer,  3  Id.  413;  Jor-  472;  Heald  v.  Hendy,  8  Id.  102;  Will- 
dan  V.  Garrison,  6  Id.  6 ;  Mixer  v.  lams  v.  Keller,  6  Nev.  141. 
Kubn,  4  Id.  409,  412. 


8^  GENERAL  PRINCIPLES.  §  70. 

induce  the  belief  that  an  impartial  trial  can  not  be  had,  in  order 
that  the  court  may  judge  whether  the  belief  is  well  founded; 
the  affidavits  of  individuals  to  their  belief  that  an  impartial  trial 
cannot  be  had  are  insufficient.^  It  has  been  said  that  an  actual 
experiment  should  be  first  made  by  attempting  to  impanel  a 
jury,  or  by  at  least  one  trial  of  the  cause.*  But  this  rule  has 
not  been  sustained,  and  other  circumstances  than  an  actual 
trial  are  sometimes  held  sufficient  evidence  that  an  impartial  trial 
can  not  be  had.^ 

§  70.  The  Same— Amount  of  Partiality  or  Prejudice 
Necessary. — The  general  sentiments  of  the  community  respect- 
ing the  merits  of  an  exciting  case  may  be  such  an  obstacle  to 
the  administration  of  justice  that  a  change  should  be  ordered.* 
But  the  court  will  not  grant  a  change  of  venue  on  the  gi-ound 
that  the  prejudices  of  the  people  of  the  county  are  against  turn- 
pike roads,  in  an  action  where  such  a  company  is  a  party. ' 
Nor  is  it  a  ground  for  a  change  of  venue  that  the  people  of  the 
county  in  which  the  action  is  to  be  tried  are  generall}'  interested 
in  the  question  involved.^  Nor  in  an  action  against  a  sheriff, 
will  the  influence  of  his  office  ba  suffijient  reason.''^  But  a 
change  of  venue  will  be  ordered  when  it  appears  tliat  one  hun- 
dred citizens  united  in  employing  counsel  to  prosecute  the  de- 
fendant.8    But  not  because  a  high  party  spirit  prevails.' 

§  71.  Affidavit  on  Account  of  Convenience  of  Wit- 
nesses. 

Form  No  7, 
[Tit  LB.] 
[Venuk.] 

[Same  as  in  No.  5,  down  to  III.] 

III.  I  have  fully  and  fairly  stated  to  my  oonnsel  the  facts 
which  I  expect  to  i)rove  by  each  and  every  one  of  tho  following 
witnesses,  viz.:  J.  K,,  L.  M.,  and  O.  P.;  and  each  and  every 
one  of  them  is  a  material  and  necessary  witness  for  my  defense 

»  Bowman   v.  Elv,    2  W^nd.   250;  ♦  People  v.  Biker,  3    Park.  Cr.  181, 

People  V.  Bodine.  7"  Hill,  147 ;  People  187 ;  S.  C,  3  Abb.  Pr.  42. 

V.  Vermilye,  7    Cow.  108,  137;   Soott  *  New  Windsor    Turnpike    Co.    V. 

v.  Gibbs,  2  Johns.   Cus.  116;  Corp.  of  Wilson,  8  Cai.  127. 

N.  Y.  V.  DHWson,    Id.  335;  Sloan  V.  «  Conley  v.  Chedic,  7  Nev.  336. 

Smith.  3  Cal.  410;   State  v.  Millain,  '  Kakerv.  Sleiget,  2  Cai.  46. 

8  Nev.  409.  «  People  v.  Lee,  5  CmI.  353. 

»  Messenger  v.   Holmes,  12  Wend.  "  Zobieskie    v.  Bauder,   1  Cai.  487. 

208;  People  v.  Wright,   6  How.  Pr.  In  general,  granting  or  refusing  change 

23.  of  venue  on  account  of  the  partiality  or 

'  People  V.  Webb,  1  Hill,  179 ;  prejudice  of  the  citizens  of  the  county 
People  V.  Long  Island  R.  R.  Co.,  4  is  discretionary  with  the  court,  sub- 
Park.  Cr.  602 ;  Budge  v,  l^ortham,  20  lect  to  revision  only  in  cases  of  abuse. 
How.  Pr.  248.  WatBon  v.  Whitney,    23.  Cal.  870. 


S  72.  PLACE  OF  TRIAL.  81 

on  the  trial  of  this  cause,  as  I  am  advised  by  my  said  counsel, 
and  verily  believe,  and  that  without  the  testimony  of  each  and 
every  one  of  the  said  witnesses,  I  can  not  safely  proceed  to  the 
trial  of  this  cause,  as  I  am  also  advised  by  my  said  counsel,  and 
verily  believe. 

IV.  That  each  and  every  one  of  said  witnesses  reside  in  the 
county  of ,  viz, :  [State  the  residence  of  each.] 

V.  The  facts  which  I  expect  to  prove  by  said  witnesses  are 
as  follows:  By  J.  K.,  the  fact  that,  etc. ;  by  L.  M.,  that,  etc. 

[Jurat.]  [Signature.] 

§  72.  The  Same— What  Affidavit  should  State.— The 
affidavit  should  be  made  by  the  defendant  himself,  but  may  be 
made  by  defendant's  attorney  where  special  reasons  are  shown  ^ 
"The  facts  expected  to  be  proved  must  be  stated  in  the  affidavit, 
«od  wherein  they  are  material  must  be  shown. ^  And  the  facts 
that  each  is  expected  to  prove  should  be  specifically  stated 
where  there  is  any  contest  as  to  the  convenience  of  witnesses. ^ 
The  affidavit  should  state  the  witnesses'  names  ami  residence. 
The  statement  that  they  are  residents  of  the  county  merely  is 
not  sufficient.*  As  the  place  of  trial  will  be  determined  by  the 
county  in  which  the  witnesses  reside  rather  than  by  the  distance 
they  must  travel.*  That  each  and  every  one  is  a  necessary  wit- 
ness must  appear,  and  that  without  the  testimony  of  each  he 
oould  not  safely  proceed,  is  also  essential.*  The  words  "every 
one  of  them"  are  held  essential.'  It  must  appear  that  the  wit- 
nesses are  necessary  as  well  as  material. ^  And  wherein  they 
are  material,  and  that  without  them  he  can  not  safely  go  to 
trial.^  Very  little  reliance  is  placed  by  the  courts  upon  a  gen- 
eral allegation  of  the  materiality  of  witnesses,  unless  it  be 
shown  wherein  they  are  material.^*  The  affidavit  in  New  York 
should  state  among  other  things,  that  he  fully  and  fairly  stated 
his  case  to  counsel:  9  Wend,  431;  3  Cow.  14;  giving  name  and 
residence  of  such  counsel,  and  has  fully  and  fairly  disclosed  to 
him  the  facts  which  he  expects  to  prove  by  each ;"  and  that  he 

*  Scott  V.  Gibbs,  2  Johns.  Caa.  116.  ^See  cases  cited  in  preceding  note. 
«  People  V.  Hrtvee,  7  How.  Pr.  248.  «  Satterlee  v.  Groot,  6  C«>w.  83;  see 
•Price    V.    Fort    Edward    Water    Y«)ung  v.Scott,  3  Hill.  82,  JiS. 

Works  16  How.  Pr.  61.  'Anonymous,    3   Wend.  424;  Con- 

*  Anonvruous,   6  Cow.  389;  West-  «t'intine  v.  DunhHm,  9  Id.  431. 
brook  V.  Mcrritt,  1  How.  Pr.  195;  see  i"  People  v.    Have«,    7     How.     Pr. 
Piercev.  Gunn.  3Hill.  445.  248. 

•Hull  V.  Hull,  1  Hill.  671;  People  "9    Wend.    10;      H'-minuwav    v. 

T.Wright,  5  How.  Pr.  28.  S  )aulding,  1  H..w.  Pr.  70;   R  .binson 

*  Onondaga  Co.  Bk.  V.  Shepherd,  19  v.  M^rritt,  Id.  165;  Anonymous,  1 
Wend.  10;  Satterlee  v.  Groot,  6  Cow.  Hill,  668;  Am.  Ex.  Bank  v.  Hill,  22 
83 ;  3  Id.  425 ;  6  Id.  389 ;   ConstanUiie  How.  Pr.  29 ;  8  Cow.  14. 

T.  Dunhutu,  9  Wend.  481. 


82  GENERAL  PRINCIPLES.  §  73. 

has  a  good  and  substantial  defense  ujion  the  merits.*  When 
defendant  is  himself  a  counselor,  the  affidavit  may  be  modified 
accordingly.'  It  should  also  state  the  name  of  the  county 
designated  in  the  complaint  as  the  county  of  Irial.^  And  il 
not  made  by  all  the  defendants,  the  reason  why* 

§  73.  The  Same — Granting  Motion  Discretionary. — 
The  granting  or  refusing  of  a  motion  to  change  the  venue  on 
the  ground  of  convenience  of  witnesses  is  discretionary  with 
the  trial  court,  and  subject  to  review  only  in  cases  of  abuse. ^ 

§  74.  The  Same— When  Motion  may  be  Made. — It 
would  seem  that  in  Nevada  an  application  for  change  of  venue 
for  con  enience  of  witnesses  is  proper  after  answer  filed  and 
cause  set  for  trial. ^  In  New  York  the  motion  for  change  on 
this  ground  can  not  be  made  before  issue  joined,''  and  the  same 
is  true  in  Calif ornia.^  Consequently  a  plaintiff  can  not,  before 
issue  joined,  use  this  ground  to  resist  a  motion  to  change  the 
venue,  made  by  the  defendant,  on  the  ground  of  non-residence 
in  tiie  county  in  which  the  action  is  broua^ht. 

§  75.  Affidavit  on  the  Ground  of  Disqualification  of 
th3  Judge. 

Form  No.  8. 
[Tftlk] 
[Vknuk] 
[Same  as  in  No.  5  d:)wn  to  III.] 

III.  That  the  Hon.  X.  Y.,  judge  of  the  court  in  which 
the  complaint  in  this  action  is  filed,  is  disqualified  from  pre- 
siding in  the  same  [he  being  related  to  the  plaintiff  within  three 
degrees  of  consanguinity,  to  wit:  a  brother  of  the  plaintiff;  or  he 
having  heretofore  acted  as  counsel  in  this  action  on  the  part  of 
the  plaintiff.] 9 

[Date.]  [Signatdrk.] 

§  76.  The  Same — What  Amounts  to  Disqualification — 
Bias  or  Prejudice. — Bias  or  prejudice  on  the  part  of  the  judge 
constitutes  no  legal  incapacity  to  sit  on  the  trial  of  a  cause,  nor  is 
it  a  sufficient  ground  to  authorize  a  change  of  place  of  trial. 
The  fact  alone  that  the  judge,  on  a  previous  trial  of  the  same 

1  President  etc.  v.  Board  of  Super-  Merrill  v.  Grinnell,  10  Id.  81 ;  T<ill  v. 

visors.  1  How.  Pr.  162.  Cromwell,    12   Id.  79;     Hubbard   v. 

sOmttiwoII   t.  Vaa  Rensselaer,    8  Nat.  Ins.  Co..  11  Id.  119. 

Cow.  846.  8  Cookv.  Pendergast,  61  Cal.  72. 

»  Bull  V.  Babbitt,  1   How.  Pr.  184;  'This   affidavit   is    rarely    if   ever 

1  Hill.  668.  made  an  a  rule;  the  bare  sugijestion 

*  Welling  V.  Sweet,  1  How.  Pr.  156.  to  the  judge  of  anyone  of  these  tacts 
» Piersori  V.  Mi'Cahill,  22  Cal.   127.  is  sufficient.     As  to  what   constitute 

•  Shecklea  v.  Sheckles,  3  Nev.  401.  disqu-vliflcations,  see  Cal.  Code  0.  P., 
'  Mason  v.  Brown,  6  How.  Pr.  431;  sec.  170. 


§  79.  PLACE  OF  TRIAL.  33 

cause,  made  an  erroneous  ruling,  is  no  evidence  of  the  exist- 
ence of  bias  or  prejudice  in  his  mind.^  Nor  is  the  exhibition 
by  a  judge  of  partisan  feeling,  or  the  unnecessary  expression  of 
an  opinion  upon  the  justice  or  merits  of  a  controversy,  though 
exceedingly  indecorous,  improper,  and  reprehensible,  as  calcu- 
lated to  throw  suspicion  upon  the  judgment  of  the  court,  and 
bring  the  administration  of  justice  into  contempt,  sufficient  to 
authorize  a  change  of  venue,  on  the  ground  that  the  judge  is 
disqualified  from  sitting.  Tlie  law  establishes  a  different  rule  for 
determining  the  disqualification  of  judges  from  that  applied  to 
jurors.^ 

§  77.  The  Same — Consanguinity. — The  statutes  of  all  of 
the  states  disqualify  judges  from  hearing  and  determining 
causes  when  they  are  related  to  the  parties  therein.  The  stat- 
ute of  California,  which  may  be  taken  as  an  example  in  tliis 
regard,  provides  that  no  judge  shall  sit  or  act  as  such  in  any 
action  or  proceeding,  when  he  is  related  to  either  party  by  con- 
sanguinity or  affinity,  within  the  Ihird  degree.  Such  dis^qualifi- 
cation,  however,  does  not  prohibit  him  from  arranging  the 
business  of  his  court,  or  from  transferring  such  action  to  some 
other  court.3  Even  if  no  objection  is  made,  he  has  no  right  to 
act,  and  ought,  of  his  own  motion,  to  decline  to  sit  as  judge.  In 
such  case  an  order  of  the  judge  dismissing  the  action  is  void, 
on  the  ground  of  his  incapacity  to  act.^ 

§  78.  The  Same — Counsel  in  the  Case.— It  is  sufficient 
cause  for  removal  that  the  judge  where  the  venue  was  laid  has 
been  counsel  or  attorney  in  the  case.^  Tluis  where  the  probate 
judge  held  a  power  of  attorney  from  certain  persons  claiming 
to  be  the  heirs  at  law  of  the  deceased,  and  authorizing  him  to  re- 
ceive for  them  all  money  and  property  which  they  might  be 
entitled  to  from  the  estate,  for  which  he  was  to  receive  a  per- 
centage upon  the  proceeds  of  the  estate,  and  that  these  proceed- 
ings were  instituted  at  the  instance  of  said  probate  judge,  a 
change  of  venue  should  be  granted.^ 

§  79.  The  Same — Interested  in  the  Action. — Judges  are 
prohibited  from  hearing  and  determining  causes  in  which  they  are 
parties  or  in  which  they  are  interested.  Statutes  to  this 
effect  prevail  in  all  the  states,  and  should  receive  a  broad  and 

»  People  V.  Williams,  24  Cal.  81.  »  Cal.  Code  Civil  Proo.,  sec.  170;  2 

»  McCatilev  V.  Welter,  12  C«l.  500.  Wend.  290 

»  Cal.  Code  Civil  Proc,    sec.    170;  «  Estate  of  White,  37  Cal.  190;    cit- 

De  la  Guerrav.  Burton,  23  Cal.  592.  in^   Oakley  t.    Aspiuwall,    3   N.  Y. 

<  Peopte  v.Jos6  KamondelaGuerra,  5i7. 
24  Cal.  73. 

EiSTKB,  Vol.  1—8. 


8*  GENERAL  PRINCIPLES.  §  80. 

liberal  interpretation  rather  than  one  that  is  technical  or  strict. ^ 
'This  proliibition  does  not  extend  to  cases  where  the  interest  is 
•simply  in  some  question  of  law  involved  in  the  controversy,  or 
^when  it  is  indirect  and  remote.  It  does  not  extend  to  all  cases 
where  the  interest  of  the  judge  is  a  direct  and  immediate  in- 
iterest  in  the  result  of  the  action.  Thus  in  an  action  for  an 
injunction,  where  the  pro[jerty  of  the  judge  was  equally  subject 
to  inj'iry  by  the  acts  sought  to  be  enjoined  as  the  property  of 
the  plaintiff  and  where  the  injunction  sought  would  equally  pro- 
tect his  property,  the  judge  is  disqualified  from  acting,  and  a 
writ  of  prohibition  will  lie  to  restrain  him  from  proceeding  in 
the  action,  although  the  court  over  which  he  presides  has  juris- 
diction of  the  cause.^ 

§  80.  The  Same— Form  of  Affidavit. —  An  affidavit  made 
on  application  to  change  the  place  of  trial  which  states  "that 
the  judge,  as  the  affiant  is  informed,  and  verily  believes,  has 
frequently  stated  that  he  believes  the  affiant  guilty  of  the  crime 
charged  in  the  indictment,  and-  has  frequently  expressed  himself 
against  and  adversely  to  the  affiant  in  connection  with  said 
^chaige,"  does  not  merit  consideration,  as  it  contains  a  mere 
charge  upon  information  and  belief,  and  does  not  show  how  the 
inf(ifmation  was  obtained,  or  upon  what  the  belief  was  based. ^ 
And  we  might  add,  that  such  an  affidavit,  unless  some  facts  are 
stated,  ought  to  subject  the  party  making  it  to  punishment  for 
contempt. 

§  81.  The  Same — Transfer  of  Cause. —  Where  a  judge  is 
incapacitated  to  act  as  such,  the  action  should  be  transferred  — 
not  dismissed ;  an  order  dismissing  the  action  would  be  null  and 
void.^ 

§  82.    Affidavit  Resisting  Motion  for  Change. 

Form  No.  9. 

[TiTLB.] 

[Vknok.] 

A.  B.,  plaintiff  above  named,  being  duly  sworn,  says  as  fol- 
lows: 

I.     I  have  fully  an'1  fairly  stated  to  E.  F. ,  my  counsel  in  this 

cause,  who  resides  at ,  in  the  county  of     , 

the  facts  which  I  expect  to  prove  by  each  and  every  one  of  the 

following  witnesses,  viz.:  G.  H.,  of  the  town  of ;  J. 

K.,  of  the  town  of  ;  L.  M.,  of  the  town  of , 

'  St,oekwell  v.  Township  Boarrl  of  Mining  Company  v.  Keyser,   58  Cftl, 

"Wliile  Lnke.  22  Mich.  SoO;  The  North  315. 

Bloomfteld  Gravel  Mining  Company  ■  People  v.  Willinms,  24('«1.  81. 

y.  K»»vser,  88  Cal.  315.  *  Burton  v.    Covan  ubias,  Cnlifomi* 

•  The    North    Bloorafleld    Gravel  April  term,  1865,  not  reported. 


§  84.  PLACE  OF  TRIAL.  85 

all  of  whom  reside  in  said  county  of ;  and  that  they 

are,  each  and  every  one  of  them,  material  and  necessary  wit- 
nesses for  me  on  the  tt  ial  of  this  cause,  as  I  am  advised  by  said 
counsel,  and  as  I  verily  believe ;  and  that  without  the  testimony 
of  each  and  every  one  of  said  witnesses  I  can  not  safely  proceed 
to  th6  trial  of  this  cause,  as  I  am  also  advised  by  my  said  coun- 
sel, and  verily  believe. 

II.  That  the  facts  which  I  expect  to  prove  by  said  witnesses 
are  as  follows  [state  in  detail  the  facts  and  circumstances  ex- 
pected to  be  proved  by  each  witness,  naming  him,  and  the  ma- 
teriality of  those  facts]. 

[Jurat.]  [SiawATTTRB.] 

§  83.  The  Same — Form  of  AfBldavit. — Affidavits  to  op- 
pose a  motion  for  a  change  of  place  of  trial  on  the  ground  of 
convenience  of  witnesses  should  be,  in  form  and  substance, 
similar  to  the  moving  affidavits  of  the  defendant,  and  should 
state  what  is  expected  to  be  proved  by  the  witnesses,^  and  their 
names.* 

§  84.  The  Same — When  PlaintifTmay  Oppose. — In  New 
York,  a  motion  to  change  the  place  of  trial  on  the  ground  that 
the  county  named  in  the  complaint  is  not  the  proper  county 
can  not  be  resisted  by  the  plaintiff,  prior  to  issue  joined,  on  the 
ground  of  convenience  of  witnesses.^  In  California  the  practice 
is  the  same  although  a  different  opinion  formerly  prevailed.* 
Nor  can  the  hearing  of  defendant's  motion,  made  at  the  time  of 
his  appearance  and  demurring,  be  postponed  by  the  court  until 
his  answer  is  filed,  and  leave  granted  to  the  plaintiff  to  make  a 
cross-motion  to  retain  the  case  on  the  ground  of  convenience  of 
witnesses.®  If  the  pla  ntiff  desires  a  re-change  to  the  county  in 
which  the  action  is  brought,  he  should  make  a  cross-motion 
to  that  effect.^  If  the  state  of  the  case  is  such  that  the  plaintiff 
has  a  right  to  resist  the  motion  for  a  change  of  venue,  time  to 
file  counter-affidavits  may  be  allowed  him  in  the  discretion  of 
the  court.''  The  voluntary  appearance  of  a  party  resisting  a 
motion  for  a  change  of  venue  gives  the  court  jurisdiction  over 
his  person,  and  waives  all  prior  informalities.^ 

*  OnondR^a  Co.  Bank  v.  Shepherd,  Cal.  418;  Jenkins  v.  California  Stage 
19  Wend.  10;  American  Ex.  Bank  v.  Co.,  22  Id.  587;  Hall  v.  C.  P.  K.  B. 
Hill.  22  How.  Pr.  29.  Co..  49  Id.  454. 

»Loelirv.  Lathnm,  15Cal.  418.  '  Heald  v.   Hurdy,  8  "West  Coast 

■  International  L.  Ass.  Co.  v.  JSweet-  Rep.  102, 

land,  14  Abb.  Pr.  240.  •  Cook  v.  Pendersrast.   61    Cal.  72; 

*  Co..k  V.  Penderiiast,  61   Cal.  72;  Moon  v,  Gardner,  6  Abb.  Pr.  243. 
Bailey  v.  Sloan,  1   West  Coast  Rep.  *  Pierson  v.  McCahill,  22  C«l.  127. 
472.    Contra:  Loebr  v.  Latham ;  15  *  Powers  v.  Bruwder,  18  Mo.  154. 


36  GENERAL  PRINCIPLES.  S  85. 

§  85.     Order  Denying  Motion. 

Form  No.  10. 
[Title.] 

At  a  regular  term  of  the  superior  court  of  the   county  of 

,  state  of  California,  held  at 

Present,  the  Honorable ,  Judge. 

The  motion  to  change  the  place  of  trial  in  tliis  action  coming 
on  regularly  to  be  heard  this  day,  A.  B.,  Esq.,  appearing  in 
favor  of  said  motion,  and  C.  D.,  Esq.,  appearing  in  opposition 
thereto,  and  the  court  being  duly  advised,  it  is  ordered  that  the 
motion  to  change  the  place  of  trial  in  tliis  action  be  and  the  same 
is  hereby  denied  [with dollars  costs]. 

§  86.  Dismissal — Effect  of. — When  two  motions  are  pend- 
ing in  an  action  at  the  same  time,  one  to  change  the  venue,  and 
one  to  dismiss,  an  entry  of  a  judgment  of  dismissal,  without  any 
formal  order  denying  the  motion  to  change  the  venue,  is  a  vir- 
tual denial  of  the  same.^ 

§  87.  Wlien  Motion  will  be  Dsnied. — The  motion  will  be 
denied  where  it  is  clear  that  the  defendant's  object  is  merely  de- 
lay.* As  where  nearly  six  months  had  elapsed  before  the  motion 
was  made,  and  long  after  the  defendant  had  answered. ^  Or 
where  by  stipulation  evidence  is  confined  to  facts  occurring  in 
the  county  where  venue  is  laid.^  Or  where  plaintiff  undertook 
to  bear  all  expenses  of  bringing  defendant's  witnesses.^  Or 
where,  after  service  of  papers  for  a  motion  to  change  venue, 
plaintiff  amended  his  complaint  changing  the  venue.*  Or  agreed 
to  change  the  venue ;  or  where  defendant  suffered  a  defaulc'  A 
change  of  venue  is  properly  refused,  unless  a  party  has  complied 
with  the  requisites  of  the  statute.^  Probably  delay  of  trial  in 
the  county  which  would  otherwise  be  most  convenient  is  a  reason 
for  refusing  the  change.* 

§  88.  The  Same — Appeal  from. — An  appeal  from  an  or- 
der refusing  to  change  the  venue  of  an  action,  operates  as  a 
stay  of  all  further  proceedings  in  the  case  in  the  court  below 
until  such  an  appeal  is  determined. '°  An  order  refusing  a  change 
of  venue  on  the  application  of  defendant  in  a  criminal  prosecu- 
tion will  only  be  reviewed  in  cases  of  gross  abuse  of  discretion.^! 

1  People  V.  .Ios6  Ramon  de  la  Guer-  •  Wolverton   v.  "Wells,  1  Hill.  87i. 

ra,  24  Cal.  73.  »  Britton  v.  Peabody,  4  Hill,  69. 

«  Kilbourne  v.  Fairchild,  12  Wend.  *  Lewin  v.  Dille,  17  Mo.  64. 

293;  Gnrlock  V.  Dunkle,  22  Id.  615.  'King  v.  Vanderbilt,  7  How.   Pr. 

»  Thorns  v.  Randall,  8  Cal.  488.  385 ;  Goodrich  v.  Vanderbilt,  Id.  467. 

*  Smith  V.  Averill,  1  Barb.  28.  "  Pierson     v.    McCahill,    23     Cal. 

•  Worthy  v.  Gilbert,  4  Johns.  492;  249. 

but  see  Kathbune  v.Harman,  4  Wend.       ^  People  y.  Fisher,  6  Cal.  154. 
208. 


§   91.  PLACE  OP  TRIAL.  87 

But  it  is  not  to  be  supposed  that  the  supreme  court  will  trust 
implicitly  in  the  discretion  of  inferior  courts.^ 
§  89.    Order  Granting  Change  of  Place  of  Trial. 

Furm  No.  11. 

[Commencement  as  in  preceding  form.] 

It  is   ordered   that  the  place  of  trial  of  this  action  be    and 

hereby  is  changed  from  the  county  of to  the   county 

of 

§  90.  The  Same — Effect  of. —  It  is  error  for  the  court  to 
refu>;e  to  change  the  place  of  trial  upon  a  proper  showing.^ 
But  the  fact  that  the  affidavit  for  a  change  of  venue  may  be  de- 
fective will  not  render  the  order  changing  the  venue  a  nullity, 
nor  should  the  case  be  dismissed  far  this  defect.  The  objection 
should  be  made  at  the  tima  the  petition  for  a  change  is  acted 
upon. 3  So,  also,  although  the  affidavit  upon  which  the  ap- 
plication to  change  the  venue  of  an  action  is  made  may  not 
show  any  legal  cause  for  such  change,  still  if  the  court  grants 
the  application,  it  has  acted  judicially  upon  a  matter  within  its 
cognizance,  and  where  it  was  clotlied  with  discretion,  and  by 
the  order  t!ie  place  of  trial  becomes  changed.'* 

§  9 1.  The  S ini3 — Proceedings  and  Practice. —  In  Cali- 
fornia, when  an  order  is  m  ide  transferring  an  action  or  proceed- 
ing for  trial,  the  clerk  of  the  court,  or  justice  of  the  peace,  must 
transmit  the  pleadings  and  papers  therein  to  the  cleik  or  justice 
of  the  court  to  which  it  is  transferred.  The  costs  and  fees 
thereof,  and  of  filing  the  papers  anew,  must  be  paid  by  the 
party  at  whose  instance  the  order  was  made.  The  court  to 
which  the  action  or  proceeding  is  transferred  has  and  exercises 
over  the  same  the  like  jurisdiction  as  if  it  had  been  originally 
commenced  tlierein.^  If  the  defendant  procures  a  change  of 
venue,  the  plaintiff  may  pay  the  costs  and  transmit  the  papers 
to  the  county  fixed  as  the  place  of  trial,  and  have  the  case  placed 
on  the  calendar  and  tried.*  In  some  states,  on  a  motion  to 
change  the  place  of  trial,  the  costs  were  usually  made  to  ahlde 
the  event  of  the  suit,  whether  the  motion  be  granted  or  denied.*^ 
But  it  may  be  otherwise  where  the  plaintiff  has  not  complied  with 
a  demand.** 

1  Peopln  V.  L"e,  5  Crt1.-'?5^  »  Qidnev  v.  Spelman.  6  Wfnrl.  525; 

«  (ipHwell  V.  vVhI.Imi,  2:^  OkI.  105.  N.rion  v."    liieh.   20  JohiH.  475;  but 

»  l*.>tier  V.  AJnins'   Executors,    2t  sen  Worthy  v.  Qilbc rt,  4  Id.  492. 

Mo.  15').  ^  Umbml   v.   Nationnl    Pri)lPction 

♦The  People    v.  Sexton,   24    Cal.  Ins..   C-..,   11    How.  Pr.   14<t.      A3   to 

78.  o<)-:t8  in  special    cases,   see  Purdv  v. 

'Oil.  Code  Civil  Proc.  800.  Winl»ll   10    Wend.   bl9;    Doualdson 

•  Brooks  V.  Dougladd,  32  Ual.  208.  T.  Juck-ou,  9  Id.  450. 


88  GENERAL  PKINCIPLES.  §   92. 

§  92.  The  Same — Service  of  Order. — In  New  York,  a 
certified  copy  of  this  order  must  be  served  upon  the  plaintiff; 
otherwise  the  plaintiff  may  proceed  as  if  tiie  place  of  trial  had 
not  been  changed.^  An  ap[)earance  and  trial  is  a  Wc^iver  of  any 
irregularity  in  this  regard.* 

§  93.  Order  to  Transfer  Cause  to  Another  Court,  on 
Account  of  Disability  of  the  Judge. 

Form  No.  1 2. 
[Title.]  / 

It  being  shown  to  the  court  by  G.  H.,  of  counsel  for  the  de- 
fendant, that  the  judge  of  this  court  was  heretofore  of  counsel 
in  a  cause  involving  the  same  title  which  is  in  issue  in  this  cause: 

It  is  ordered,  that  this  cause  be  transferred  to  the  superior 
court  of  the  county  of for  trial. 

§  94.  Notice  of  Time  and  Place  of  Trial  of  Trans- 
ferred Action. 

Form  No  IS. 
[Title.] 

To  A.  B.,  the  plaintiff  in  the  above  entitled  action,  and  C.  D., 
the  defendant  in  said  action  : 

You  will  please  take  notice  that  the  said  action,  transferred 

to  the  above-entitled  court  from   the. court  of  the 

township,    in ,  county   of  ,   is   set  for  trial   before 

me,  at  my   couit-room,  in   said township,   in   said 

county,  the day  of 18..,  at o'clock,  p.  m. 

J.  P., 

[Date.]  Jii«ticp  of  th'-Peac«  of  siid township.' 

§  95.  Removal  of  Causes  from  State  to  United  States 
Courts — St.\tutes  Aifecting. —  The  principal  statutes  of  the 
Uniied  States,  authorizing  and  regulating  the  transfer  of  causes 
from  the  state  courts  to  the  courts  of  the  United  States,  have 
been  the  arts  of  1789,  18G6,  18G7,  and  1875.  The  twelfth  sec- 
tion of  the  judiciary  act  of  1789,  the  act  of  July  27,  186B,  and 
of  March  2,  18G7,  though  technicai'y  repealed,  are  substantially 
embodied  in  section  639  of  the  revised  statutes  of  the  United 
States.  There  are  other  provisions  of  the  statute  covering  the 
transfer  of  a  limited  number  of  special  cases,  but  section  639 
of  the  revised  statutes,  ami  the  act  of  March  3,  1875  (adopted 
since  the  revised  statutes,  and  not  found  therein),  provide  for 
nearly  all  the  cases  met  with  in  ordinary  practice.  For  the 
last-named  act,  see  acts  of  1875,  p.  470. 

»  Rnot,  Arlm'r  etc.  v.  Tuvlor,  18  Johns.  335;  Keep  v.  Tyler,  4  Cow.  641, 

«  B'Mtisv.  Loirdti,  2  .Mo.  "4. 

»  tiee  CHliluriiiaCodu  Civil  Proc,  sec.  836. 


S  97.  PLACE  OF  TRIAL.  39 

§  96.  Special  Cases. — ^Tbe  special  cases  not  falling  within 
section  639,  or  the  act  of  1875,  are  the  following:  1.  Causes 
civil  and  criminal,  in  any  state  court,  against  persons  denied 
civil  rights ;  ^  2.  Suits,  civil  and  criminal,  against  revenue  offi- 
cers of  the  United  States,  and  a  ainst  officers  and  other  persons 
acting  under  the  registration  laws ;  ^  3.  Suits  by  aliens  against 
civil  officers  of  the  United  States,  under  specified  circumstances  ;^ 
and,  4.  Suits  against  certain  federal  corporations,  or  their  mem- 
bers as  such.'*     Section  640  is  as  follows : 

*'  Any  suit  commenced  in  any  court  other  than  a  circuit  or 
district  court  of  the  United  States  against  any  corporation  other 
than  a  banking  corporation  organized  under  a  law  of  the 
United  States,  or  against  any  member  thereof  as  such  member, 
may  be  removed,  for  trial,  in  the  circuit  court  for  the  district 
where  such  suit  is  pending,  upon  the  petition  of  such  defend- 
ant, verified  by  oath,  stating  that  such  defendant  has  a  defense 
arising  under  or  by  virtue  of  the  constitution  or  of  any  treaty 
or  law  of  the  United  States.  Such  removal,  in  all  other  re- 
spects, shall  be  governed  by  the  provisions  of  the  pfrecediug  sec- 
tion." 

§  97.  Suits  against  Corporations  Organized  Under  Law 
of  the  United  States. — Under  this  section  a  petition  for  re- 
moval must  state  that  the  corporation  or  member  applying  for 
the  removal  "  has  a  defense  arising  under  or  by  virtue  of  the 
constitution  of  the  United  States,  or  some  treaty  or  law  of  the 
United  States,"  but  the  facts  constituting  the  defense  need  not 
be  stated,  nor  what  the  defense  is.^  In  Magee  v.  U.  P.  R.  R. 
Co.,  2  Saw.  C.  C.  447,  which  was  an  action  for  a  personal  in- 
jury to  the  plaintiff,  and  the  only  defense  made  by  the  answer 
was  a  denial  of  the  negligence,  the  decision  of  which  depended 
entirely  upon  common-law  principles,  and  did  not  involve  the 
construction  of  any  act  of  congress,  the  cause  was,  on  motion, 
remanded  to  the  state  court.  The  decision  was  made  by  Hill- 
yer,  J.,  in  1873.6  In  1875,  in  Turton  v.  U.  P.  R.  R.  Co.,  3 
Dillon  C.  C.  366,  Justice  Miller  held  the  other  way  on  the  same 
state  of  facts.  If  the  holding  of  the  latter  case  is  correct,  there 
would  seem  to  be  no  necessity  for  requiring  the  verified  state- 
ment, in  the  petition  for  removal,  that  the  defendant  has  a  de- 
fense under  or  by  virtue  of  the  constitution  or  some  treaty  or 

»  U.  S.  R.  S..  sees.  641,  642.  11   Blatchf.  40fi;    Ma^ee  v.  U.   P.  R, 

S  1(1.,  se.-.  1)43.  R..  2  Saw.  447  ;  Fisk  v.  U.  P.  R.   R.,  8 

8  I.I.,  s.'C.  (344.  lilalchf.  248. 

♦  M.,  sec.  H40.  *  Sep  also  Texus  v.  Railroad  Co.,  3 

'  Jones  V.  Oceanic  Steam  Nav.  Co.,  "VVouJo,  ii08. 


40  GENERAL  PRINCIPLES.  §  98. 

law  of  the  United  States ;  for  if  such  defense  arises  from  the 
mere  fact  of  incorporation  under  a  law  of  the  United  States,  a 
statement  that  it  is  such  corporation  would  evidently  be  suffi- 
cient; but  Jones  v.  Oceanic  Steam  Nav.  Co.,  supra^  holds  tliat 
it  is  not  sufficient.  In  the  case  of  tliis  corporation,  however, 
the  charter  authorizes  it  to  sue  or  be  sued  in  the  circuit  court 
of  the  United  States,  and  jurisdiction  having  been  conferred  by 
the  action  of  the  state  court,  it  is  not  clear  that  it  was  improperly 
retained. 

§  98.  Removable  Causes. — Section  639  of  the  revised  stat- 
utes, and  the  act  of  1875,  are  so  important  that  we  copy  the  ma- 
terial parts. 

Sec.  639.  "Any  suit  commenced  in  any  state  court,  wherein 
the  amount  in  dispute,  exclusive  of  costs,  exceeds  the  sura  or 
value  of  five  hundred  dollars,  to  be  made  to  appear  to  the  satis-; 
faction  of  said  court,  may  be  removed  for  trial  into  the  circuit 
court  for  the  district  where  such  suit  is  pending,  next  to  be  held 
after  the  filing  the  petition  for  such  removal  hereinafter  mentioned, 
in  the  cases  and  in  the  manner  stated  in  this  section.  First. 
When  the  suit  is  against  an  alien,  or  is  by  a  citizen  of  the  state 
wherein  it  is  brought,  and  against  a  citizen  of  another  state,  it 
may  be  removed  on  the  petition  of  such  defendant,  filed  in  said 
state  court  at  the  time  of  entering  his  appearance  in  said  state 
court.  Second.  When  the,  suit  is  against  an  alien  and  a  citizen 
of  the  state  wherein  it  is  brought,  or  is  by  a  cilizen  of  such 
state  against  a  citizen  of  the  same  and  a  citizen  of  another  state, 
it  may  be  so  removed,  as  a-jjainst  said  alien  or  cilizen  of  another 
state,  upon  the  petition  of  such  defendant,  filed  at  any  time 
before  the  trial  or  final  hearing  of  the  cause,  if,  so  far  as  it  re- 
lates to  him,  it  is  brouglit  for  the  purpose  of  restraining  or  en- 
joining him,  or  is  a  suit  in  which  there  can  be  a  final  determi- 
nation of  the  controversy  so  far  as  concerns  liira,  without  the 
presence  of  the  other  defendants  as  parties  in  the  ciuse.  But 
such  removal  shall  not  take  away  or  prejudice  the  right  of  the 
plaintiff  to  proceed  at  the  s  une  time  with  the  suit  in  tlie  state 
court  as  against  the  other  defendants.  Tliird.  Wliere  a  suit 
is  between  a  citizen  of  the  state  in  which  it  is  brouglit  and  a 
citizen  of  another  state,  it  may  be  so  removed  on  the  petition 
of  the  latter,  whether  he  be  plaintiff  or  defendant,  filed  at  any 
time  before  the  trial  or  final  hearing  of  the  suit,  if  before  or  at 
the  time  of  filing  said  petition  he  makes  and  files  in  said  state 
court  an  affidavit  stating  that  he  has  reason  to  believe,  and  does 
believe,  that,  from  prejudice  or  local  influence,  he  will  not  be 


§    98.  PLACE  OF  TRIAL.  41 

able  to  obtain  justice  ia  such  state  court.  In  order  to  snch 
removal,  the  petitioner  in  the  cases  aforesaid  must,  at  the  time 
of  filing  his  petition  therefor,  offer  in  said  court  good  and 
sufficient  surety  for  his  entering  in  such  circuit  court,  on  the 
first  day  of  its  session,  copies  of  said  process  against  him,  and 
of  all  pleadings,  depositions,  testimony,  and  other  proceedings 
in  the  cause;  or,  in  said  cases  where  a  citizen  of  the  state  in 
which  the  suit  is  brought  is  a  defendant,  copies  of  all  process, 
pleadings,  depositions,  testimony,  and  other  proceedings  in  the 
cause  concerning  or  affecting  the  petitioner,  and  also  for  his 
there  appearing  and  entering  special  bail  in  the  cause,  if  special 
bail  was  originally  requisite  therein.  It  shall  thereupon  be  the 
duty  of  the  state  court  to  accept  the  surety  and  to  proceed  no 
further  in  the  cau«»e  against  the  petitioner,  and  any  bail  that 
may  have  been  originally  taken  shall  be  discharged.  When 
the  said  copies  are  entered  as  aforesaid  in  the  circuit  court,  the 
cause  shall  there  proceed  in  the  same  manner  as  if  it  hud  been 
brought  there  by  original  process,  and  the  copies  of  plea  lings 
sha41  have  the  same  force  and  effect,  in  every  respect  a  id  for 
every  purpose,  as  the  original  plea  ling  would  have  had  by  the 
laws  and  practice  of  the  courts  of  such  state  if  the  cause  had 
remained  in  the  state  court." 

Tlie  first  subdivision  of  this  section  contains  the  substance  of 
section  12  of  the  judiciary  act,  subdivision  2,  the  substance  of 
the  act  of  July  27,  1866,  and  the  third  subdivison  the  substance 
of  the  act  of  March  2,  1867.  For  these  two  acts  see  the  U.  S.  Stats, 
at  Large,  306,  558. 

The  second  and  third  sections  of  the  act  of  March  3,  1875 
(acts  of  1875,  p.  470),  are  as  follows:  "  Sec.  2.  That  any  suit  of 
a  civil  nature,  at  law  or  in  equity,  now  pending  or  hereafter 
brought  in  any  state  court,  where  the  matter  in  dispute  exceeds, 
exclusive  of  costs,  the  sum  or  value  of  five  hundred  dollars,  and 
arising  under  the  constitution  or  laws  of  the  United  States,  or 
treaties  made,  or  which  shall  be  made,  under  their  authority,  or 
in  which  the  United  States  shall  be  plaintiff  or  petitioner,  or  in 
which  there  shall  be  a  controversy  between  citizens  of  different 
states,  or  a  controversy  between  citizens  of  the  same  state  claim- 
ing Ian  Is  under  grants  of  different  states,  or  a  controversy  be- 
tween citizens  of  a  state  and  foreign  states,  citizens*  or  sulijects, 
eitiier  party  mav  rem  )ve  saiil  suit  into  the  circuit  court  of  the 
United  States  for  the  proper  district;  and  when  in  any  suit 
mentioned  in  this  section  t  lere  shall  be  a  controversy  which  is 
wholly  between  citizens  of  different  states,   and  which  can  be 


IS  GENERAL  PRINCIPLES.  §  98. 

fully  determined  a3  between  them,  then  either  one  or  more  of 
the  plaintiffs  or  defendants,  aotually  interested  in  such  contro- 
versy, may  remove  said  suit  to  the  circuit  court  of  the  United 
States  for  the  proper  district. 

*'  Sec.  3.  That  whenever  either  party,  or  any  one  or  more  of 
the  plaintiffs  or  defendants  entitled  to  remove  any  suits  men- 
tioned in  the  next  preceding  section,  shall  desire  to  remove 
Buch  suit  from  a  state  court  to  the  circuit  court  of  the  United 
States,  he  or  they  may  make  or  file  a  petition  in  such  suit  in 
such  state  court  before  or  at  the  term  at  which  said  cause  could 
be  first  tried,  and  before  the  trial  thereof,  for  the  rem  )val  of 
such  suit  into  the  circuit  court  to  be  held  in  the  district  where 
such  suit  is  pending,  and  shall  m  ike  and  file  therewith  a  bond, 
with  good  and  sufficient  surety,  for  his  or  their  entering  in  such 
circuit  court,  on  the  first  day  of  its  then  next  session,  a  copy  of 
the  record  in  such  suit,  and  for  payin,?  all  costs  tliat  m  vy  be 
awarded  by  the  said  circuit  court,  if  said  court  shall  hold  that 
such  suit  was  wrongfully  or  improperly  removed  thereto,  and 
also  for  there  appearing  and  entering  special  bail  in  such  suit, 
if  such  bail  was  originally  requisite  therein.  It  shall  then  be 
the  duty  of  the  state  court  to  accept  said  petition  and  bond,  and 
proceed  no  further  in  such  suit,  and  any  bail  that  may  have 
been  originally  taken  shall  be  discharged ;  and  tlie  said  copy 
being  entered  as  aforesaid  in  said  circuit  court  of  the  United 
States,  the  cause  shall  then  proceed  in  the  same  manner  as  if 
it  had  been  originally  commenced  in  the  said  circuit  court;  and 
if  in  any  action  commenced  in  a  state  court  the  title  of  land  be 
concerned,  and  the  parties  are  citizens  of  tlie  same  state,  and 
the  matter  in  dispute  exceed  the  sum  or  value  of  five  hundred 
dollars,  exclusive  of  costs,  the  sura  or  value  being  made  to  ap- 
pear, one  or  more  of  the  plaintiffs  or  defendants,  before  the 
trial,  may  state  to  the  court,  and  make  affidavit,  if  the  court 
require  it,  that  he  or  they  claim  and  shall  rely  ui>on  a  right  or 
title  to  the  land  under  a  grant  from  a  state,  and  produce  the 
original  grant,  or  an  exemplification  of  it,  except  where  the  loss 
of  public  records  shall  put  it  out  of  his  or  their  p  )wer,  and  shall 
move  that  any  one  or  more  of  tlie  adverse  party  inform  the  court 
whether  he  or  they  claim  a  rig'it  or  title  to  the  l.md  under  a 
grant  from  some  other  state;  the  party  or  parties  so  required 
shall  give  such  information,  or  otherwise  not  l)e  allowed  to 
plead  such  grant,  or  give  it  in  evidence  upon  the  trial ;  and  if 
he  or  they  inform  that  he  or  they  do  claim  und  m-  such  grant, 
auy  one  or -more  of  the  party  moving  for  such  iuiormaLion  may 


§    100.  PLACE  OP  TRIAL.  48 

'hen,  on  petition  and  bond,  as  heretofore  mentioned  in  this  act, 
remove  the  cause  for  trial  to  the  circuit  court  of  the  United 
States  next  to  be  holden  in  such  district;  an  1  any  one  of  either 
party  removing  the  cause  shall  not  be  allowed  to  plead  or  give 
evidence  of  any  other  title  than  that  by  him  or  them  stated  aa 
aforesaid  as  the  ground  of  his  or  their  cl:\im,  and  the  trial  of 
issues  of  fact  in  the  circuit  courts  shall,  in  all  suits  except  those 
of  equity  and  a Imiralty  an  1  m uitime  jurisdiction,  be  by  jury.** 

Section  4  provides  in  substance,  that  any  attachment  or  se- 
questration had  in  the  state  courts  shall  continue  to  hold  the 
goods  or  estate  after  the  removal,  that  all  bonds  and  undertak- 
iuTS  or  security  given  in  the  state  courts  shall  remain  valid  and 
effectual,  and  that  all  injunctions,  orders,  and  other  pioceedings 
had  prior  to  removal  shall  remain  in  full  force  until  dissolved  or 
modified  by  the  circuit  court. 

Section  5  provides  for  remanding  causes  improperly  trans- 
ferred, and  for  review  in  the  su.  reme  court  of  order  dismissing 
or  remanding  the  cause. 

Section  7  provides  that  if  the  next  term  of  the  circuit  court 
to  which  any  cause  is  removed  under  the  act  shall  commence 
within  twenty  days  after  the  order  of  transfer  is  made,  the 
party  transferring  may  have  twenty  days  from  the  date  of  the 
order  to  file  copy  of  the  record  and  enter  appearance  in  the  cir- 
cuit court.  It  also  provides  that  a  Krit  certiorari  may  issue 
to  the  state  court  if  the  clerk  refuses  to  give  copy  of  the  record 
on  pnyment  or  tender  of  his  fees,  etc.^ 

§  99.  Suits  against  Aliens  under  Revised  Statutes, 
Ssction  639,  Subdivision  1. — The  right  of  an  alien  defend- 
ant, when  sued  alone,  to  remove  the  cause  to  the  circuit  court, 
is  unqualified,  except  as  to  the  amount  in  controversy,  which 
must  exceed  five  hundred  dollars,  exclusive  of  costs.  AVhen 
sued  with  a  citizen  of  the  state  where  the  action  is  brought,  if, 
80  far  as  it  relates  to  him,  the  action  is  brought  for  the  purpose 
of  restraining  or  enjoining  him ;  or  if  the  controversy,  so  far  as 
he  is  concerned,  can  be  finally  determined  without  the  presence 
of  the  other  defendants,  and  the  controversy  involves  the  sum  or 
value  of  five  hundred  dollars,  he  may  have  it  removed. 

§  100.  The  Same. — To  authorize  a  removal  under  subdi- 
vision 1  the  petition  must  show:  1.  That  the  plaintiff,  or  if 
more  than  one,  then  that  all  the  plaintiffs  are  citizens  of  the 
state  in  which  the  action  is  brought;  2.  That  all  the  defendants 
are  citizens  of  another  state.     Normal  pai-ties,  that   is,   those 

>See  18  U.  S.  Stats,  at  Large,  part  3,  pp.  470-473. 


44  GENERAL  PRINCIPLES.  §   101. 

who  are  not  necessary  to  a  determination  of  the  real  contro- 
versy, will  not  prevent  a  removal.^  The  fraudulent  or  improper 
joinder  of  parties  will  not  prevent  a  removal. ^  3.  Tliat  the 
sum  or  value  involved  in  the  case  exceeds  five  hundred  do!l.us, 
exclusive  of  costs,  4.  That  the  order  for  removal  is  applied 
for  by  all  the  defendants.  In  Davis  v.  Cook,  9  Nev.  134,  it  was 
held  that  if  a  suit  be  brought  as;ainst  several  non-rcsiden* 
joint  del)tors  in  a  state  where  the  statute  authoiizos  the  plaintiff 
to  proceed  against  the  defendants  served,  and  if  he  recover 
judgment  it  may  be  enforccnl  against  the  joint  properly  of  all 
or  the  separate  property  of  the  defendants  served,  and  the  only 
defendants  served  are  citizens  of  another  state,  such  dcfend:nit8 
are  entitled  to  remove  the  cause  into  the  circuit  court,  though 
the  co-defendanc  not  served  does  not  join  in  tlie  api)lic:iti<)n.* 
Whether  after  removal,  in  such  a  case,  the  plaintiff  is  entitle  I  to 
process  to  bring  in  the  other  defendants  seems  to  be  dis- 
puted. In  Fallis  v.  McAithur,  1  Bond,  100,  it  was  held  that 
the  plaintiff  was  entitled  to  such  process,  while  De:idy,  J.,  in 
Field  V.  Lownsda'e,  1  Deady,  288,  seems  to  be  of  a  diff-Tent 
©pinion,  5,  It  must  be  filed  at  t  e  time  the  def(  n  lant,  or  de- 
fendants, enter  their  appearance  in  the  state  court.  As  to  the 
meaning  of  the  expression,  "at  the  time  of  ent(rin<i:  his  ap- 
appearance,"  consult  Chatham  Nat.  Bank  v.  Merchanis'  Nat. 
Bank,  1  Ilun,  702;  Davis  v.  Cook,  9  Nev.  134;  Webster  v. 
Crothers,  1  Dili.  C.  C,  301.  In  California,  and  most  of  the 
"code  states,"  a  formal  appearance  is  not  necessary.  A  def»nd- 
ant  appears  in  an  action  when  he  answers,  demurs,  or  gives  the 
plaintiff  written  notice  of  his  ai)pearance,  or  when  an  attorney 
gives  notice  of  an  appearance  for  him.'* 

§  101.  RemDval  under  Section  639,  Subdivision  2. — 
Under  this  subdivision,  which  is  substantially  the  act  of  July 
27,  186'),  14  Stat,  at  Large,  30G,  the  right  is  given  to  a  i)art  of 
the  defendants  to  remove  a  cause  under  the  conditions  n.tmed. 
The  case  of  aliens  under  this  subdivision,  has  been  already 
noticed.  Aside  from  aliens,  a  removal  may  be  had,  under  this 
subdivision,  when  all  tlie  following  conditions  exist:  1.  The 
plaintiff  in  the  suit  must  be  a  citizen  of  the  state  in  which  the 

'  Ward  V,  Arreilondo,  1  Paine.  410;  *   Sen  also  Merwin  v.    Wexell,  49 

Woi.d  V.  Davis,  18  H.w,  (U.  S.)  4)7;  How.  Pr.  115. 

JMavor  etc.  V.  Cutniniiis.  4/  Gi.  ;y2l,  •California  Code   Civ.   Prop.,    ncc, 

*  See  Siniih  v,  Rines,  2  Siiriin,  3  ;8;  1014;  see  Forbes  v.  Hydf,  31  CmI.  346; 

Ex  parte   Girard,  3    Wall.  jun.   'Mi.  l)y<'r  v.  North.  44    d.  lo7;   Lvm.iii   v. 

Ab  to  improper  joinder  or  causes  of  Milton,  Id.  631 ;  Lauder  v.  Fleiuming, 

aciiiin,  see  Cooke  v.  Stale  HaU  Bank,  47  Id.  614. 
62  H.  y.  96. 


§  102.  PLACE  OF  TRIAL.  45 

suit  is  brought;  2.  There  roust  be  more  than  one  defendant, 
and  one  or  more  of  the  defendants  must  be  a  citizen  of  the  state 
where  the  suit  is  brought,  and  one  or  more  of  them  must  be  a 
eitizen  of  another  state;  3.  The  amount  in  controversy  must 
exceed  the  sum  or  value  of  five  hundred  dollars,  exclusive  of 
costs ;  4.  The  suit  must,  so  far  ag  it  relates  to  the  non-resident 
defendant,  be  for  the  purpose  of  restraining  or  enjoining  him, 
or  be  one  in  which  there  can  be  a  final  determination  of  the 
controversy,  so  far  as  concerns  him,  without  the  presence  of  the 
other  defendants  as  parties  in  the  cause ;  5.  The  party  entitled 
to  a  removal  must  apply  for  it  "  before  the  trial  or  final  hearing 
of  the  cause"  in  the  state  court.  Only  that  part  of  the  case 
which  relates  to  the  non-resident  defendant  thus  appljing  is 
removed,  leaving  the  case,  as  between  the  plaint  ff  and  the  resi- 
dent defendant,  to  proceed  in  the  state  court.  For  the  con- 
struction and  the  extent  to  which  the  act  of  1866  will  be  applied, 
see  Hodgson  v.  Hayes,  9  Abb.  Pr.,  N.  S.,  87 ;  Darst  v.  Bates,  51 
111.  439 ;  Stewart  v.  Mordecai,  40  Ga.  1.  This  act  has  no  appli- 
cation to  a  case  where  one  of  the  defendants  is  an  alien,  and  the 
other  defendants  are  citizens  of  another  state,  and  none  of  the 
defendants,  or  none  who  are  served,  are  citizens  of  the  state  in 
which  the  suit  is  brought.^  Under  a  joint  application  by  two 
defendants,  the  removal  may  be  granted  as  to  one  and  denied 
as  to  the  other.^  Under  special  circumstances  one  copartner 
may  remove  the  cause  as  to  himself  under  the  act  of  1866.3 

§  102.  Removal  under  Section  639,  Subdivision  3. — ^This 
subdivision,  as  already  stated,  is  substantially  the  act  of  March 
2,  1867,  known  as  the  "prejudice  or  local  influence  act."  Like 
the  act  of  1866,  the  primary  condition  is  the  existence  of  a  suit 
in  a  state  court  between  a  citizen  of  the  state  in  which  the  suit 
is  brought  and  a  citizen  of  another  state,  but  unlike  that  act, 
the  right  to  remove  the  cause  is  given  to  the  plaintiff,  as  well  as 
the  defendant,  if  an  affidavit  is  made  and  filed  of  "  prejudice  or 
local  influence."  The  time  of  making  the  application  is  not 
limited  to  the  time  of  the  "  appearance  "  or  answer,  but  may  be 
made  at  any  time  before  the  trial  or  final  hearing.  In  Johnson 
V.  Monell,  1  Woolw.  394,  Miller,  J.,  says  of  the  act  of  March  2, 

1  Davis  v.  Cook,  9  Nev.  134.  removing  the  cause,  consult  Field  v. 

«  Uart  V.  Walker,  4  Daly  (N.  Y.),  Lowiisdale,   ]    Deadv,  288 ;    Fields  v. 

188.  Lamb,   Id.  430;  Allen  v.  Rverson,  2 

»  McQinnity  v.  White,  8  Dill.  C.  C.  Dill.   C.  C.  601 ;   Bixby   v.   Couse,  8 

860.    As  to  the  construction  of  this  Blatchf.  73;  Case  of  Sewing  Machine 

subdivision  in  regard  to  cases  where  Companies,  18  Wall.  583;  S.  C,  Flor- 

there  can  be  a  final  determination  of  ence  S.  M.  Co.  v.  Grrover  &  Baker  S. 

the  controversy  as  to  the  defendant  M.  Co-  110  M.a83.  70. 


46.  GENERAL  PRINCIPLES.  §   103. 

1867:  *' For  the  first  time,  it  allows  a  plaintiff  to  remove  the 
suit  from  the  tribunal  of  his  own  selection.  It  also  allows  this  to 
be  done  either  by  plaintiff  or  defendant,  in  a  certain  event 
in  any  stage  of  the  litigation  prior  to  the  final  heiring  or  trial. 
The  only  conditions  necessary  to  the  exercise  of  the  right  of 
removal  are :  1.  That  the  controversy  shall  be  between  a  citi- 
zen of  the  State  in  which  the  suit  is  brought  and  a  citizen  of 
another  State ;  2.  That  the  matter  in  dispute  shall  exceed  the 
sum  of  five  hundred  dollars,  exclusive  of  costs;  3.  That  the 
party,  citizen  of  such  other  state,  shall  file  an  affi  lavit  stating 
that  he  believes,  and  has  reason  to  believe,  that,  from  preju  lice 
or  local  intiuence,  he  will  not  be  able  to  obtain  justice  in  the 
state  court;  4.  Tiiat  he  give  the  re  luisite  surety  for  appearing 
in  the  federal  court  at  the  proper  time,  with  copies  of  the 
papers.  Congress  inteiidod  to  give  the  right  in  every  case 
where  the  four  requisites  we  have  mentioned  exist." 

The  right  of  removal  under  t  is  act  is  limited  to  citizens,  and 
does  not  apply  to  aliens.^  The  whole  suit  is  to  be  removed ;' 
and  all  the  defendants,  not  nominal  or  merely  formal  parties, 
must  apply.'     So,  as  to  plaintiffs.'* 

§  103.  Rem  Dvals  undartlis  Act  of  March  3, 1375.— The 
important  parts  of  this  act  have  been  given.  For  tiie  entire 
act,  see  18  U.  S.  Stats,  at  Large,  470.  It  is  not  material  iu 
tJiis  connectiou  to  note  the  first  section  of  the  act  relating  to 
the  original  jurisdiction  of  the  circuit  court,  further  than  to 
say  it  gives  jurisdiction  in  certain  cases  on  the  ground  of  the 
subject-matter,  without  regard  to  the  citizenship  of  the  parties, 
and  in  other  cases  because  of  citizenship  without  regard  to  the 
subject-matter  of  the  suit ;  and  the  same  distinctive  points  are 
Carrie  I  into  the  second  and  third  sections  in  regard  to  removal 
of  causes ;  and  therefore  it  may  be  stated,  as  a  general  proposi- 
tion, that  any  cause  which  might,  under  this  act,  have  been 
originally  brought  in  the  circuit  court,  may  be  removed  from  a 
state  court  at  the  time  and  in  the  manner  prescribed  in  the 
third  section.  Briefly  stated,  the  conditions  of  removal  are  the 
following:  1.  The  amount  in  controversy  must  exceed  five  hun- 
dred dollars,   exclusive   of    coasts;  2.  The  right  of    removal    is 

»  Crnne  v.   Reedpr,  28  Mich.   527 ;  Ion  C.  C.  299 ;  48  Ga.  181 ;  67  N.  C.  391. 

Davis  V.  Cook,  9  Nev.  134.  As  so  the  policy  and  purpose  of  the 

*  Sfiwing  Machine  Connpanies  Cnse,  ants   of  1866   and   1867,  see  Crane  v. 

18    WhI!  553;    Cuoke  V.  State  Nat.  Header,  supra ;  Galpin   v.  Critchiow, 

Bk.  62  N.  Y.  98.  112   Mass.  389;    Hsizurd  v.  Durant,  9 

•Hixbv  V.   Couse,  8    Blatchf.  78;  K.  I.  602;  Fisk  v.  U.  P.  R.  K.  Co.,  6 

Cooke  V.  State  Nat.  B'k,  aupra.  Blatchf.  862. 

«  Chm  et  al.  v.  Douglas  et  al.,  1  DiU 


§  103.  PLACE  OF  TRIAL.  47 

given  to  either  party,  an<l,  under  special  circumstances,  to 
either  one  or  more  of  either  phiintiffs  or  defendants,  viz.: 
Where  in  any  suit  mentioned  in  section  2  there  shall  be  a  con- 
troversy which  is  wholly  between  citizens  of  different  states, 
and  which  can  be  fully  determined  as  between  them,  then 
either  one  or  more  of  the  plaintiffs  or  defendants,  actually  in- 
terested in  such  controversy,  may  remove  the  cause ;  3.  As  to 
subject-matter,  without  regard  to  citizenship,  it  gives  the  right 
to  remove  "  any  suit  of  a  civil  nature  at  law  or  in  equity  "  in- 
volving over  five  hundred  dollars,  (1)  in  cases  arising  under  the 
constitution,  or  laws,  or  treaties  of  the  United  States,  and  (2) 
cases  in  which  the  Unitt-d  States  shall  be  plaintiff  or  petitioner; 
4.  As  to  citizenship,  without  regard  to  subject-matter,  the  right 
of  removal  is  given,  (1)  in  any  suit  in  which  there  shall  be  a 
controversy  between  citizens  of  different  states;  or,  (2)  a  con- 
troversy between  citizens  of  the  same  state  claiming  lands  under 
grants  of  different  states ;  or,  (3)  a  controversy  between  citi- 
zens of  a  state  and  foreign  states,  citizens,  or  subjects;  5.  The 
removal  mu^t  be  applied  for  by  petition  filed  in  the  state  court 
*'  before  or  at  the  terra  at  which  the  cause  could  be  first  tried, 
and  before  the  trial  thereof." 

The  question  as  to  what  are  cases  "  arising  under  the  consti- 
tution and  laws  of  the  United  States,"  has  received  judicial 
construction.  In  Cohens  v.  Virginia,  6  Wheat.  379,  it  is  said 
that  "  a  case  may  be  truly  said  to  arise  under  the  constitution 
or  a  law  of  the  United  States,  whenever  its  correct  decision  de- 
pends upon  a  right  construction  of  either."^  In  The  Mayor  v. 
Cooper,  6  Wall.  252,  Swayne,  J.,  said:  "Nor  is  it  any  objec- 
tion that  questions  are  involved  which  are  not  all  of  a  federal 
character.  If  one  of  the  latter  exist,  if  there  be  a  single  such 
ingredient  in  the  mass,  it  is  sufficient."  If  the  actual  contro- 
versy involves  only  questions  of  common  law  or  of  state  stat- 
utes, though  the  right  or  title  of  one  of  the  parties  was 
originally  derived  or  acquired  from  or  under  an  act  of  con- 
gress, there  being  no  question  raised  as  to  the  construction  or 
yalidity  of  the  act,  the  case  is  not  removable. ^ 

In  law  cases  removed  to  the  federal  court,  or  in  purely  equity 
cases,  it  is  not  necessary  to  replead,  even  for  the  purpose  of 

>  See  also  Hughes  v.  Northern  P.  (2  Otto),  723;Romie  et  dl.  v.  Casa- 

R'y   Co.,    1     West    Coast    Rep.    21;  nova,  91  Id.  {I  Otto),  380;   Trafton  v. 

Northern  P.  R.   R.  Co.  v.    Curia  id,  N(iu<»es   (Sawver,  circuit  judg^),    13 

2  Id.  326;  Willametlrou  Bridge  Co.  Pacific  Law  Rep.  49;   b.  a,  4  Cent, 

V,  Hitch.  Id.  230.  L.  J.  228. 

s  See  McStay  v.  Friedman,  92  U.  iS. 


48  GENERAL  PRINCIPLES.  §104. 

• 

showin?  jurisdiction,  as  the  order  for  removal  becomes  part  of 
tlie  record,  and  shows  how  the  jurisdiction  is  acquired.  In 
cases,  howtver,  where  legal  and  equitable  claims  or  causes,  or 
causes  of  action,  are  joined,  as  in  those  states  having  codes,  it 
is  necessary  to  frame  the  pleadings  anew,  making  tlie  case  one 
at  law  or  one  in  equity,  or  dividing  it,  and  maliiiig  one  a  case  at 
law,  and  the  other  a  suit  in  equity.^ 

§  104.  When  the  Application  for  Removal  must  be 
Made. — Under  subdivision  1  of  section  639,  the  application 
must  be  made  by  tlie  defendant  at  the  time  of  entering  his  ap- 
pearance in  the  state  court.  He  must  act  promptly.  If  he 
pleads,  demurs,  or  answers,  he  waives  his  right.^  It  is  too  late 
after  reference  and  continuance.^  Nor  can  the  state  court  re- 
store the  right  of  removal  by  permitting  an  appearance  to  be 
entered  nunc  pro  tunc*  Under  subdivisions  2  and  3  of  the  same 
section  the  petition  for  removal  may  be  filed  *'  at  any  time 
before  the  trial  or  final  hearing  of  the  suit"  in  the  state  court. 
It  is  too  late  to  malte  it  after  the  case  has  been  appealed  and  is 
pending  in  the  state  appellate  court.  It  must  be  made  before 
final  judgment  in  the  court  of  original  jurisdiction. ^  In  Rath- 
bone  Oil  Co.  V.  Rauch,  5  West  Va.  79,  a  case  was  commenced 
against  a  citizen  of  another  state,  for  unlawful  detainer,  before 
a  justice  of  the  peace;  judgment  was  rendered  for  the  plaintiff, 
and  defendant  appealed  to  the  (state)  circuit  court,  and  in  that 
court  made  his  application  to  remove  the  cause  to  the  federal 
court  under  the  act  of  1867,  which  was  denied.  On  appeal  to 
the  court  of  appeals  the  latter  court  reversed  the  judgment, 
holding:  first,  that  no  motion  to  remove  could  have  been  made 
before  the  justice,  that  not  being  a  "state  court'*  within  the 
meaning  of  the  act  of  Congress;  second,  the  case  on  appeal 
from  the  justice  is  tried  de  novo  in  the  circuit  court,  the  same  as 
if  never  tried,  and  hence  there  was  no  "final  trial"  within  the 
intent  of  the  act.     It  seems  now  to  be  generally  held  that  the 

»  See  R.  S.,  sees,  639,  914;  Thomp-  »  Stevenson  v.  Williams,  19  Wall. 

Bon  V.  Rjiilroad   Co.,   6    Wall.    134;  572;  Vannevar  v.  Bryant.  21    Id.  41 ; 

Dart  V.  McKinney,   9    IMatchf.   350;  Fashnacht  v.  Prank,  23   Id.  416.     A 

Green   v.   Custard,   23   How.   (U.S.)  hearing  on  ^demurrer  to  a  complaint, 

484;   Partridge  v.  Ins.  Co.,  15    Wall,  and  an  order  overruling  the  same  and 

573.  allowing  the  defendant  to  answer  to 

'  Johnson  v.  Monell,  1  Woolw.  390 ;  the  merits  of  the  case,  is  not  a  "  trial " 

West  V.Aurora  City,  6  AVall.  139;  within  the  meaning  of  that  term   as 

Webster  t.  Crothers,  1  Dillon  C.  C.  used  in  section  3  of  the  act  of  1875; 

801 ;    McBratney  v.  Usher,  Id.   367,  such  trial,  whether  it  be  an  issue  of 

869.  fact  or  law,  is  one  upon  which  a  final 

•  Robinson  V.  Potter,  43  N. H.  188.  disposition    of    the    case    is    made: 

«  Ward  V.  Arredondo,  1  Paine,  410;  Miller  v.  Tobin,  I  West  Coast  liep. 

Gibson  v.  Johnson,  Pet.  0.  C.  44.  236. 


§  105. 


PLACE  OP  TRIAL. 


49 


fact  of  a  trial,  if  the  verdict  has  been  wholly  set  aside  and  a 
new  trial  granted  by  the  court  in  which  tlie  action  was  brou'^ht, 
or  if  the  jtid^rnent  of  that  court  has  been  wholly  reversed  by 
the  state  appellate  court  and  the  cause  has  been  remanded  for 
a  new  trial,  does  not  defeat  the  right  of  removal. 

§  105.  Wii3"a  Petition  must  be  Filed.— The  act  of  1875 
requires  the  petition  for  removal  to  be  filed  before  or  at  the 
term  at  which  the  cause  could  be  first  tried.  This  is  construed 
to  mean  the  first  term  at  which,  under  the  law  and  the  rules  of 
the  court,  the  cause  would  be  triable,  whether  from  press  of 
business  or  otherwise  it  could  be  reached  for  trial  at  that  term 
or  not. 2  Whether  laches  in  making  up  the  issues  will  defeat 
the  right  of  removal,  if  removal  be  applied  for  before  the  issues 
are  completed,  qiiceref  ^ 


*  Soe  Vaunevar  v.  Brvant,  21  WalL 
41 :  S.  C„  Brviint  v.  Kich.  105  M  t^s. 
180 ;  Kelloir^rV.  Hughes,  3  Dillon,  ;3o7 ; 
Diirt  V.  Mclviiiiiev,  9  Blatchr.  359; 
Fashnaclii  v.  Frank,  23  Wall.  41 «; 
Dart  V.  Walker,  4  Daly  (N.  Y.),  188; 
Insurance  Co.  V.  Dunn,  19  Wall.  214. 
In  a  very  recent  case  in  Colorndo,  it 
was  decided  by  Judge  Hallett,  that 
when  two  actions  are  brought  in  the 
stale  court  on  the  same  cause  of  ac- 
tion, and  between  the  snme  parties 
or  their  successors  in  interest,  the 
court  may  require  the  parties  to  elect 
in  which  they  will  proceed,  or  may 
consolidate  th'-m.  If  the  causes  are 
not  consolidate!,  any  steps  taken  in 
one  of  them  will  bind  the  parlies  in 
the  other.  Consequently,  if  afler  the 
right  of  remftval  to  the  federal  court 
had  been  established  in  both  suits  the 
parties  proceed  to  trial  in  the  state 
court  in  either  action,  the  riglit  to 
remove  the  aciion  not  tried,  under  the 
act  of  1875,i.s  waived  :  Evai.8  v.  Smith, 
8  West  Coast  Rep.  213. 

'  See  Ames  v.  Colorado  Central  R. 
R.  Co.,  4  Cent.  !>.  J.  lUO.  A  recent 
case  decided  bs' the  circuit  court  of 
Califoini'i  is  important  as  determin- 
ing what  are  "terms"  under  the 
present  judicial  system  of  that  state. 
An  action  was  commenced  in  the 
fourth  district  court  of  the  state  of 
California,  on  August  1.  1879  r  deCend- 
ant  demurred  August  22,  1879.  The 
demuirer  was  overruled.  It  answered 
September  12,  1879.  Plaintiff  de- 
murred to  that  part  of  the  answer, 
settitiii  up  new  matter  as  a  defense, 
October  2,  1879.      The  new  constitu- 

EsTKB,  Vol.  I — 1 


tion  of  California  of  1879  having  in 
the  mean  time  taken  ettect,  the  case 
was  transferred  into  the  superior 
court  as  the  successor  of  the  di>trict 
court,  Hnd  on  January  23,  1880,  was 
assigned  to  department  No.  7  of  the 
superior  court.  On  March  22,  1880, 
the  demurrer  to  the  answer  was  sus- 
tained. An  amended  answer  was 
filed  April  I,  1880,  which  put  the  case 
at  issue.  The  constitution  of  1879, 
and  the  statutes  passed  in  pursuance 
thereof,  provide  that  "the  superior 
courts  shall  always  be  open  (h'gal 
holidays  and  non-judicial  dnys  ex- 
cepted) and  they  shall  hold  *  *  » 
regular  ses-ions  coinmcneing  on  the 
first  Mondriys  of  January,  April, 
July,  and  October,  and  special  ses- 
sions at  such  other  times  as  may  be 
prescribid  by  the  judge  or  ju  Iges 
thereof."  On  J>iiuiary  21,  18S4,  the 
defendant  filed  a  pi'iiiion  to  remove 
the  case  to  tlie  Unili-d  States  circuit 
court,  on  the  ground  that  the  parties 
were  cili7.ens  of  different  states. 
Held,  thill  under  the  act  of  congress 
of  187o,  providing  that  the  appliva- 
tion  for  removal  must  be  m^ide  "be- 
fore or  at  tlie  term  at  which  said 
cause  could  be  first  tried,"  the  appli- 
cation in  tills  CH8!  came  too  late; that 
the  four  general  se-sions  of  the  su- 
periiir  court  required  to  le- held  are 
"terms"  within  the  meaning  ot  the 
act:  M.-N.iughton  V.  S.  P.  C.  R.  R. 
Co..  2  West  Coast  Rep^GG2.. 

3  Scott  et  al.  V.  Clinton  arid  Spring- 
field R.  R.  C<^.,  8  Chicago  Legal 
News,  210;  S.  C,  Scott  et  al.  etc.  v. 
Clinton  etc.  R.  R.Co.^  6  Bisaell,  629. 


50  GENERAL  PRINCIPLES.  §   106. 

§  106.     Entry  of  Appearance. 

Fo7Tn  No.  IJj, 
[TiTLB  OF  State  Court  and  Cause.] 
Tlie  said  defendant,  A.  B.,   now  comes,  and  hj  C.    D.,  his 
•attorney,   enters  his   appearance   in   said   action,    and  herewith 
also  files  his  petition  for  the  removal  of  said  cause  into  the  cir- 
cuit court  of  the  United  States,  in  and  for  the district 

of  the  state  of  C.  D., 

Attorney  for  Defendant. 

§  107.  Petition  for  Transfer  under  Section  639,  Sub- 
division 1. 

Form  No  15, 
[TiTLK  OF  State  Cotjrt  akd  Cause.] 
To  said  superior  court: 

Your  petitioner,  C.  D.,  respectfullly  shows  that  he  is  the  de- 
fendant in  the  above-entitled  suit;  that  said  suit  was   brought 

by  said  plaintiff,  A.  B.,  on  or  about  the  day  of  , 

18 ,  in  this  court;  that  the  said  plaintiff  at  the  time  of  the 

•commencement  of  said  suit  was,  and  still  is,  a  citizen  of  this 
state,  and  your  petitioner  then  was,  and  still  is,  a  citizen  of  the 
state  of  

Your  petitioner  further  represents  that  said  action  above 
entitled  was  brought  by  the  said  plaintiff  for  the  purpose  of 
,[here  briefly  state  the  nature  of  and  subject-matter  of  the  suit,  and 
the  relief  asked],  and  that  the  matter  in  dispute  in  said  action 
exceeds  the  sum  and  value  of  five  hundred  dollars,  exclusive  of 
costs. 

Your  petitioner  further  shows  that  he  has  herewith  filed  his 
appearance  in  said  action,  and  offers  herewith  his  bond  executed 

by  ,  of  ,  as   surety   in  the  penal   sum   of  two 

hundred  and  fifty  d'>llars,  conditioned  as  required  by  section 
639  of  the  revised  statutes  of  the  United  States,  and  that  your 
petitioner  desires  to  remove  said  cause  above  entitled  into  the 

circuit  court  of  the  United  States  for  the  district  of , 

pursuant  to  said  statute. 

Your  petitioner,  therefore,  prays  that  said  bond  may  be  ac- 
cepted as  good  and  sufficient,  according  to  said  statute,  and 
that  the  said  suit  may  be  removed  into  the  next  circuit  court  of 

the  United  States  in  and  for  said  district  of  ,  pursuant 

to  said  statute  in  such  case  made  and  provided,  and  that  no 
further  proceeding  be  had  therein  in  this  court. 

And  your  petitioner  will  ever  pray.  , 

Attorney  for  Pluintifll 


§   108.  PLACE  OF  TRIAL.  61 

Statpof  ,  Igg 

County  of  j 

C.  D.,  being  first  duly  sworn,  says  that  he  is  the  petitioner 
above  named,  that  he  has  read  the  foregoing  petition,  and  knows 
the  contents  thereof,  and  that  each  and  every  of  the  matters  and 
things  therein  stated  are  true. 

[Jurat.]  [SiGNATtmK.]! 

§  108.  The  Sams — On  Ground  of  Prejudice  on  Local 
Influence. 

Form  No.  16. 

[TiTLB  OF  StATB  CoTTRT  AND  CaUSK.J 

To  said  superior  court — Your  petitioner,  A.  B.,  respectfully 
shows  that  he  is   the   plaintiff   in   the  above-entitled  suit,  and 

that  the  same  was  commenced  by  him  on  or  about  the  day 

of  ,  18...,  in  said  superior  court,  and  that  your  peti- 
tioner was  at  the  time  said  suit  was  brought,  and  still  is,  a  citi- 
zen of  the  state  of ,  and  a  resident  thereof. 

Your  petitioner  further  shows  that  there  is,  and  was  at  the 
time  said  suit  was  brought,  a  controversy  therein  between  yoar 

petitioner  and  the  said  defendant ,  who  is  a  citizen  of 

the  state  of   and  a  resident  thereof;  that  said  action 

was  brought  by  your  petitioner  for  the  purpose  of  [here  briefly 
state  the  nature  of  the  suit  and  the  relief  asked],  and  that  the 
matter  in  dispute  in  said  suit  exceeds  the  sum  of  five  hundred 
dollars,  exclusive  of  costs. 

Your  petitioner  further  represents  that  said  suit  has  not  been 
tried,  but  is  now  pending  for  trial  in  this  court,  and  that  your 
petitioner  desires  to  remove  the  same  into  the  circuit  court  of 

the  United  States  for  the  district  of  ,  in  pursuance  of 

the  act  of  congress  in  that  behalf  provided,  to  wit,  the  revised 
statutes  of  the  United  States,  section  639,  subdivision  3. 

Your  petitioner  further  says  that  he  has  filed  the  affidavit  re- 
quired by  the  statute  aforesaid  in  such  cases,  and  offers  herewith 

his  bond,  executed  by ,  of   ,  as  surety,  in  the 

penal  sum  of  two  hundred  and  fifty  dollars,  conditioned  as  by 
said  act  of  congress  required. 

[Add  prayer  as  in  form  No.  15.] 


[Vbbification.]  Attorney  for  Plaintiff. 

^  The  statute  does  not  exprpssly  re-  statement  in  the  verified  petition  for 

quire  the  petition  to  be  vorified.  nor  rf*moval  would  be  ordimirily  sufficient 

that    any   affidavit    should    be  filed,  to  satisfy  the  court  as  to  the  amount 

though  the  usual   practice,  and   cer-  or  value  in   dispute,  but   where   the 

taiiily  tl  e  better  practiee,  is  to  verify  suit  is  not  upon  a  money  demand,  or 

the   petition.    If  the    suit    is   for  a  for  dam ng  s,  the  better  course  would 

money  demand,   the    declaration  or  be  to  prudent  a  distiuct  affidavit  of 

complaint  of   the  plaintilf  and  the  value. 


62  GENERAL  PRINCIPLES.  §    109. 

§  109.  Affidavit  of  Prejudice  or  Local  Influence  to 
Accompany  the  Foregoing  Petition. 

Form  No.  17.  — 

[TiTLK  OF  Statb  Court  a.vd  C  vusk.] 

Stale  of  ,  Kg 

County  of ) 

I,  A.  B  ,  being  duly  sworn,  say  that  I  am  the  plaintiff  in  the 
above-entitled  cause,  and  that  I  have  reason  to  believe,  and 
do  believe,  that  from  prejudice  and  local  influence  I  will  not  be 
able  to  obtaiu  justice  in  said  state  court 

[.JORAT.]  [SlONATURK.]! 

§  110.    Bond  to  Accompany  Last  Petition  Above. 

Form  No.  18. 

Know  all  men  by  these  presents  that  we, as  principal, 

and of  as  surety,  are  hereby  held  and  firmly 

bound  unto  in  the  penal  sura  of  dollars,  law- 
ful money  of  the  United  States,  for  the  payment  of  which,  well 
and  truly  to  be  made,  we  bind  ourselves  jointly  and  severally 
firmly  by  these  presents.     The   condition   of  this   obligation   is 

such  that  if  said shall  enter  and  file,  or  cause  to  be 

entered  and  filed,  in  the  circuit  court  of  the  United  States  in 

and  for  the  district  of  on  the  first  day  of  its 

session  next  to  be  held,  copies  of  all  process,  pleadings,  deposi- 
tions,  testimony   and   other   proceedings  in  a   certain    suit   or 

action  now  pending  in  the  superior  court  of  the  county  of , 

'state  of  ,   in  which     is  plaintiff  and   

is  defendant ;  and  shall  do  such  other  appropriate  acts  as, 
by  the  act  of  congress,  in  that  behalf  are  required  to  be  done 
upon  the  removal  of  such  suit  from  said  state  court  into  the 
said  United  States  court,  then  this  obligation  shall  be  void, 
otherwise  of  force. 

Dated  this day  of  ...,18 


} 


ss. 


State  of  , 

County  of   

I, ,  of  said  county,  the  surety  named  in  the  fore- 
going bond,  being  duly  sworn,  do  depose  and  say  that  I  am  a 

resident  of  the  state  of  ,  and  a  property-holder  therein, 

that  I  am  worth  the  sum  of  five  hundred  dollars,  over  and  above 
all  my  debts  and  liabilities,  and   exclusive  of  property  by  law 

1  The  above    form  of  petition  and  be  readily  chanp;ed  to  apply  to  the 

affiilnvit  are  from  "Dillon  on  the  Re-  case  of  a  defendant  applying  on  the 

movHl  of  Causes,"  pp.  81.  82,  under  game  ground, 
subdivision  8  of  section  639,  and  may 


§   112.  PLACE  OP  TRIAL.  53 

exempt  from  execution ;  and  that  I  have  property  in  the  state  of 

,  liable  to  execution,  of   the  value  of   more  than  five 

hundred  dollars. 

[Jurat.]  [Signatttre.]! 

§111.  Petition  for  Removal  under  Act  of  March  3, 
1875,  on  the  Ground  of  Citizenship,  where  all  the  Oppos- 
ing Parties  are  Citizens  of  Different  Stat3s,  and  all  the 
Plaintiffs  or  all  the  defendants  Unite  in  the  Petition. 

Form  No.  19. 
[TiTLB  OF  State  Court  and  Cause.] 

To  said  Court:  Your  petitioners,  A.  B.,  C.  D.,  and  E.  F.,  re- 
spectfully show  to  this  honorable  court  that  the  matter  and 
amount  in  dispute  in  the  above-entitled  suit  exceeds,  exclusive 
of  costs,  the  sum  or  value  of  five  hundred  dollars: 

Tliat  the  controversy  in  said  suit  is  between  citizens  of  differ- 
ent states ;  that,  at  tlie  time  of  the  commencement  of  this  suit, 
the  said  A.  B.,  one  of  your  petitioners,  was,  and  still  is,  a  citi- 
zen of  the  state  of ;  that  said  C.  D.  was  then,  and  still 

is,  a  citizen  of  the  state  of  [Here  give,  in  the  same 

manner,  the  citizenship  of  each  of  the  several  plaintiffs  and  de- 
fenlants.]* 

And  your  petitioners  offer  herewith  a  bond,  with  good  and 
sufficient  surety,  for  their  entering  in  said  circuit  court  of  the 
United  States,  on  the  first  day  of  its  next  session,  a  copy  of  the 
record  in  this  suit,  and  for  the  payment  of  all  costs  thttt  may 
be  awarded  by  said  circuit  court,  if  said  court  shall  hold  that 
this  suit  was  wrongfully  or  improperly  removed  thereto. 

And  you  petitioners  pray  this  honorable  court  to  proceed  no 
further  in  said  cause,  except  to  make  the  order  of  removal  now 
prayed  for  and  required  by  law,  and  to  accept  the  said  surety 
and  bond,  and  to  cause  the  record  herein  to  be  removed  into 
the  said  circuit  court  of  the  United  States  in  and  for  the  dis- 
trict of ,  and  your  petitioners  will  ever  pray. 


[Verification]  Attorney  for  Petitioners. 

§  112.  The  Sme. — If  the  application  is  made  unlet'  the 
latter  clause  of  section  2,  act  of  1875,  and  all  the  plaintiffs,  or 
all  the  defendants,  as  the  case  may  be,  do  not  join  in  the  peti- 

1  The  abovti  form  of  bond  is  np plica-  testimony,  and  other  proceedinajs  so 

ble  to  removals  under  3ut)ilivisi()ii   I  far  as  th«  same  concern  or  Hffect  the 

of  8<'<*.  6:^9,   H3  well  as  under  subii-  petitioiier,    in    a    certain   suit,"    etc. 

vision  3.     If  the  bond  is  ijiven  under  Sueh    bond   must    be   sijjned   by   tho 

sultdivision   2,    tho   condition    should  principal:    K(»ugh  v.  Booth,  2    West 

be  to  enter  and  file,  etc.,  "copies  of  Coast liep.  72. 
all    prucess,    pleadings,    depoiiitioos, 


54  GENERAL  PRINCIPLES.  §   112. 

tion  for  removal,  follow  the  preceding  form  down  to  the  star  (*), 
changing  the  plural  to  the  singular  if  required,  and  then  insert: 
"  Your  petitioner  states  that,  in  the  said  suit  above  mentioned, 
there  is  a  controversy  which  is  wholly  between  citizens  of  differ- 
ent states,  and  which  can  be  fully  determined  as  between  them, 
to  wit,  a  controversy  between  the  said  petitioner  and  the  said 

and  the  said [naming  the  parties  actually 

interested  in  said  controversy]."  If  the  pleadings  in  the  case 
do  not  sufficiently  show  the  nature  of  the  controversy  to  be  one 
within  the  latter  clause  of  section  2,  an  explicit  statement  show- 
ing that  fact  should  be  added  to  the  above  allegations,  and  then 
proceed  as  in  the  above  form. 

Wliere  the  ground  of  removal  is  that  the  suit  is  one  "arising 
unier  the  constitution  and  laws  of  the  United  States,  or  trea- 
ties made  under  their  authority,"  follow  the  above  form  down 
to  the  star  (*),  and  then  insert  the  following:  "  Your  pet  tioner 
further  shows  that  said  suit  is  one  arising  under  the  laws  [or 
constitution,  or  treaties  as  the  case  may  be]  of  the  United 
States,  in  this:  [Here  state  the  facts  showing  that  a  federal 
question  necessary  to  a  proper  decision  of  the  case  is  involved], 
after  which  follow  above  form  to  the  conclusion.  In  this  case 
the  citizenship  of  the  parties  is  not  necessary  to  be  stated,  but 
8uch  statement  can  do  no  harm ;  and  if  it  constitutes  an  additional 
ground  for  removal,  it  may  be  also  relied  upon. 

The  petition  for  a  removal  on  the  ground  that  the  parties  are 
citizens  of  different  states,  m  ist  show  that  such  ground  of  re- 
moval existed  both  at  the  time  of  the  comraencemjnt  of  the 
action  and  at  the  tim3  of  the  application  for  removal.  A  peti- 
tion which  only  alle:^es  that  the  defendant  is.  and  always  has 
been,  a  citizen  of  California,  anlthit  the  plaintiff  is  a  citizen  of 
Missouri,  is  insulflcient.  The  citizenship  of  the  parties,  un  ler 
such  ciicunastances,  is  a  judicial  fact,  and  must  be  alle;^ed 
in  the  petition.  If  such  allegations  are  not  made,  whether  the 
petition  may  be  amen  led  in  the  circuit  court  so  as  to  show  them, 
qiccere.  If  the  power  to  allow  such  ameidments  be  conceded, 
it  is  not  a  matter  which  the  party  rem  )ving  can  demand  as  a 
legal  right,  but  only  a  matter  for  the  exercise  of  a  sound  dis- 
cretion by  the  c  )urt.  Such  an  amsud  nent  should  not  be 
allowed  where,  after  an  am  mdment  of  the  petition  in  the  cir- 
cuit court,  the  record  in  each  court  w  )uld  show  upon  its  face 
jurisdiction  which  would  authorize  it  to  proceed  to  final  judg- 
ment.* 

1  McNaughton  ▼.  S.  P.  0.  R.  R.  Co,  2  West  Coast  Rep.  683. 


§  116.  PLACE  OF  TRIAL.  55 

§  113.    Bond  to  Accompany  the  Preceding  Petition. 

Form  No  20. 

[Follow  No.  18  down  to  the  beginning  of  tlie  condition,  then 
proceed  as  follows :] 

This  obligation  is  upon  the  following  conditions:     The  said 

having  petitioned  the    court   of  the   county   of 

of  the  State  of  ,  for  the  removal  of  a  cer- 
tain cause  therein  pending,   wherein is  plaintiff,    and 

is  defendant,  to  the  circuit  court  of  the  United  States  in 

and  for  the  district  of 

Now  if  the  said ,  your  petitioner,  shall  enter  in  the 

said  circuit  court  of  the  United  States,  on  the  first  day  of  its 
next  session,  a  copy  of  the  record  in  said  suit,  and  shall  pay  or 
cause  to  be  paid  all  costs  that  may  be  adjudged  against  him  by 
said  circuit  court,  if  said  court  shall  determine  that  said  suit 
■was  wrongfully  or  improperly  removed  thereto,  then  this  obli- 
gation to  be  void,  otherwise  in  full  force. 

"Witness  our  hands  and  seals  this day  of ,  18... 

[Justification  of  Surktiks.]  [Sionaturbs  and  Seals.] 

§  114.  Th3  Sims — Form  of  Bond. — In  any  case  where 
special  bail  was  required  of  the  defendant  in  the  cause  origi- 
nally, insert  in  the  condition  of  the  bond,  "and  shall  then  and 
there  appear  and  enter  special  bail  in  said  action."  The  sum 
to  be  inserted  as  the  penalty  of  the  bond  is  not  prescribed. 
The  am  )unt  should  be  fixed  with  reference  to  the  circumstances 
of  the  case,  and  the  acts  and  duties  of  the  petitioners  in  each 
special  ca3e.  It  is  essential  that  the  bond  be  several,  not 
merely  joiut.^  It  is  not  essential  that  the  petitioner  should  be 
one  of  the  obligors  in  the  bond.^  The  bond  need  not  be  condi- 
tioned for  the  appearance  of  other  defendants  who  had  not  been 
served  with  process,  and  who  do  not  unite  in  the  application. ^ 

§  1 15.    Tne  Same — OfF3r  and  Sarvica  of  Bond. — A  suffi- 
cient bond  must  be  offered  at  the  time  pointed  out  in  the  act,  and 
can  not  be  afterwards  amended  in  su!»stance.^ 
§  116.    Notice  of  Motion  for  Removal. 

Form  No.  21. 
[Title  of  State  Court  and  Cause.] 

To  ,  plaintiff's  attorney: 

Take  notice,  that  upon  the  petition  and  appearance  of  the 
defendant,  of  which  a  copy  is  hereto  annexed,   and  which  were 

1  Roberts  v.  Carrinctnn,  2  Hall.  694.  "  Su vdam  v.  Smith,  1  Den.  2fi8 ;  Van- 

'  Vandeviiori    v.    Pidiner,   4    Dut-r.  devoort  v.  Pahner,  4  Diier,  677. 

677  ;  t'Ut  s<e  Rough  V.  Booth,  2  West  *  Huberts   v.    Carriii<jlon,    2   Hull, 

Coast  Kep,  TZ.  G94. 


56  GENERAL  PRINCIPLES.  §   117. 

on,  etc.  [or  upon  the  petition,  a  copy  of  which  is  hereto  an- 
nexed, and  which,  together  with  the  petitioner's  appearance 
herein  already  served  on  you,  was,  on,  etc.],  filed  in  this  court, 
and  upon  the  bond  of  the  petitioner  and  his  sureties  [or  the 
bond   on  behalf  of  the   petitioner],   a   copy  of   which  is   also 

annexed,  defendant   will,  on ,  at ,  at  the   hour 

of ,  move  the  court  that  said  cause  be  removed  from 

this  court  to  the  circuit  court  of  the  United  States  for  the 

district  of 

[Date.]  [Siqnaturk.]  ^ 

§  117.    Order  to  Show  Cause. 

Form  No.  22, 
[TiTLB  OF  State  Court  and  Cavsk.] 

To ,  plaintiff's  attorney: 

The  defendant  having  this  day  entered  an  appearance  in  this 
cause,  and  at  the  same  time  filed  a  petition  praying  for  the 
removal  of  this  action  to.  the  circuit  court  of  the  United  States 
for  the  district  of  California,  pursuant  to  the  act  of  congress  of 
the  United  States  in  such  ease  made  and  provided,  antl  offered 
the  surety  as  therein  provided  by  a  bond  now  filed,  it  is  ordered 

that  the   plaintiff   show   cause   on ,  the day  of 

next,  before   this   court,  at  the  opening  of  court  on 

that  day,  or  as  soon  thereafter  as  practicable,  why  tlie  pra3''er 
of  said  petition  should  not  be  granted,  and  in  the  mean  time 
and  until  the  hearing  of  said  petition,  let  all  proceedings  on 
the  part  of  the  plaintiff  herein  be  8ta3'ed.  E.  D., 

[Datk.]  District  .Juripe. 

§  118.  Order  for  Removal  of  Cause  to  United  States 
Court. 

Foitn  No.  SS. 
[TiTLB.] 

Upon  reading  and  filing  the  petition  of ,  the  de- 
fendant in  the  above-entitled  action,  and  upon  filing  the  bond, 
and  good  and  sufficient  sureties  having  been  offered  by  the  said 
defendant  in  the  premises,  and  the  same  being  by  me,  the  judge 
of  said  superior  court,  duly  accepted,  it  is  hereby  ordered  that 
no  furtlier  proceedin'j;3  be  had  in  tliis  cause,  and  the  removal  of 
the  same  to  the  circuit  court  of  tlie  United  States  for  the  district 
of  California,  to  be  held  in  and  for  the district  of  Cali- 

'  The  plaintiffs  mav  oppose  the  mo-  11    How.  Pr.  479.    The    Hpplip«t5on 

tion  upon  the  movimj  papers,  or  with  should  be  on  notice,  or  an    ord'^r  to 

new  hAS  Invits  hIso.  but  fifter  the  onl'fr  s'mw    ohus":    Di-^hrow    v..Dri<ifrs.    8 

grantiticj  tlio  petition    has  been  mi  da  Abb.  Pr.  805.  n.     Bu'   comojire  Illius 

the  jiiri-diction  of  the  state  court  is  v.  New   York   and  N-w  H  iven  R.  R. 

gone,  an  1  ihit  court  hia  no  power  to  Co.,  13  N.  Y.  597,  where    aa    order 

vacate  its  order;  Llveruiore  v.  Jenks,  was  made  ex  parte. 


§  123.  PLACE  OF  TEIAL.  .  57 

fornia,  be,  and  the  same  is  hereby,  allowed  and  ordered,  in  ac- 
cordance witli  the  aforesaid  petition  and  the  statute  of  the  United 
States  in  such  case  made  and  provided. 

[Date.]  [Sion-aturb.] 

§  119.  Elect  of  Rsmoval  on  Injunctioa, — Neither  an 
outstanding  injunction,  nor  a  motion  for  an  attachment  for  its 
violation,  prevents  the  removal  of  the  cause. ^  Injunctions,  or- 
ders and  other  proceedings  granted  in  the  state  court  prior  to 
removal  are  expressly  continued  in  force  by  sect'on  4  of  the  act 
of  March  3,  1885  (18  U.  S.  Stat,  at  Large,  471).  where  the  mo- 
tion to  dissolve  an  injunction  in  the  federal  court  is  mide  upon 
the  same  papers  upon  which  tiie  writ  was  granted  in  the  state 
couit,  it  is  in  effect  an  application  for  rearguiOLMit.  and  leave  to 
to  make  such  motion  should  be  first  applied  for  and  obtained  be- 
fore it  can  be  made.^ 

§  120.  Mandamis  to  Compel  Trial  after  Removal. — Tlie 
supreme  court  of  CalifDrnia  has  no  jurisdiction  to  grant  a  writ 
of  mandate  to  compel  the  judge  of  a  district  court  to  proceed 
with  the  trial  of  an  action  commenced  therein,  in  which  an  or- 
der has  been  made  by  said  district  court  directin'^  the  cause  to 
be  transferred  to  the  circuit  court  of  the  Uniti'd  States  for  tiial, 
for  the  alleged  reason  that  the  parties  thereto  are  citizens  of 
different  states,  the  subject-matter  being  in  the  jurisdiction  of 
the  said  district  court. ^ 

§  121,  Removal  Refused. — A  suit  in  equity  to  enjoin  a  suit 
at  law  is  in  reality  an  equitable  defense,  and  its  removal  may  be 
refused."*  A  summons  to  show  cause  why  a  debtor  not  served 
in  the  original  action  should  not  be  bound  by  the  judgment  is 
regarded  as  a  further  proceeding  rather  than  a  new  action,  and 
a  removal  can  not  be  granted  unless  the  plainMff  is  an  alien,  or 
all  of  the  several  defendants  are  citizens  of  another  state  from 
the  plaintiff. 5 

§  122.  Surety  Approved. — It  is  proper  that  the  order 
should  declare  the  surety  approved.^ 

§  123.  Writ  of  Certiorari  under  Section  7,  of  the  Act 
of  March  3,  1875. 

Form  No.  24. 
The  president  of  the  United  States  of  America  to  the  judge 

of  the  superior  court  of  the  county  of  ,  in  and  for  the 

state  of  California: 

*  Bvam  V.  Stevens.  4  E<iw.  Ch.  119;  *  Rng^prs  v.  Roirprs.  1  Prtifirp,  1S8. 

«  ('MrririL'^t.oii    v.  Florida  R.  U.  Co.,  »Fairohild  v.   Diir:.nd,  8  Ahl>.  Pr. 

9  BlMtchr.  4(1'<.  30'i;  sf-e  IJriirbtley's  Dl-est.  1-'. 

»  Francisco  v.  Manhattan  Ins.  Co.,         •  Vandevoort  v.   Palmei,    4  Duer, 

86  CaL  283.  677. 


68  GENERAL  PRINCIPLES.  §   123. 

"Whereas  it  hath  been  represented  to  the  circuit  court  of  the 

United  States  for  the  district  of    ,  that  a  certain  suit 

was  commenced  in  the   [here   name   the   state    court]  wherein 

,  a  citizen  of  the  state  of  ,  was  plaintiff,  and 

,  a  citizen  of  the  state  of ,  was  defendant,  and 

that  the   said  duly   filed   in   the   said    state   court  his 

petition  for  the  removal  of  said  cause  into  the  said  circuit  court 
of  the  United  States,  and  filed  with  said  petition  the  bond  with 
surety  required  by  the  act  of  congress  of  March  3,  1875,  entitled 
"An  act  to  determine  the  jurisdiction  of  the  circuit  courts  of 
the  United  States,  and  to  regulate  the  removal  of  causes  from 
state  courts,  and  for  other  purposes,"  and  that  the  clerk  of  the 
said  state  court  above  named  has  refused  to  the  said  petitioner 
for  the  removal  of  said  cause  a  copy  of  the  record  therein, 
though  his  legal  fees  therefor  were  tendered  by  the  said  peti- 
tioner ; 

You,  therefore,  are  hereby  commanded  that  you  forthwith 
certify,  or  cause  to  be  certified,  to  the  said  circuit  court  of  the 
United  States  for  the  district  of ,  a  full,  true,  and  com- 
plete copy  of  the  record  and  proceedings  in  the  said  cause,  in 
which  the  said  petition  for  removal  was  filed  as  aforesaid, 
plainly  and  distinctly,  and  in  as  full  and  ample  a  manner  as 
the  same  now  remain  before  yoU)  t  >gether  with  this  writ;  so 
that  the  said  circuit  court  may  be  able  to  proceed  thereon,  and 
do  what  shall  appear  to  them  of  right  ought  to  be  done. 
Herein  fail  not. 

Witness  the  Honorable  Morrison  R.  "Waite,  chief  justice  of 
the  supreme  court,  and  the  seal  of  said  circuit  court  hereto 
affixed,  this,  the day  of ,  a.  d.  18... 


[Seal.]  Clerk  of  said  Circuit  Court* 

*  Writ. —  "The  writ  of  certiorari  mnde,  it  is  supposed,  b}' the  clerk  of 

shotild  be  addressed  to  the  judije  or  the  state  court: "  Dillon  on  Removal 

judi^i's  of  the  otHte  court,  but  a  return  of  Causes,  f'S;  citing  tJtowurt  v.  ingl«, 

to  the  writ  duly   certidud   may    be  9  Wheat.  62t>. 


§  126.  PARTIES  TO  CIVIL  ACTIONS.  C9 


CHAPTER  IV. 

PARTIES  TO  CIVIL  ACTIONS. 

§  124.  Who  are  Parties,  Generally. — The  persons  by 
■whom,  and  the  persons  against  whom  actions  are  instil  uted, 
are  the  parties  to  the  actions.  In  courts  of  original  jurisdiction, 
the  former  are  called  plaintiffs,  and  the  latter  defendants.  In 
appellate  courts  they  are  known  as  appellant  and  appellee  or 
respondent;  in  courts  of  error,  as  plaintiff  in  error,  and  de- 
fendant in  error.  The  term  "  parties,"  when  used  in  connection 
with  the  subject-matter  of  the  issue,  is  understood  to  include 
all  who  are  directly  interested,  aud  who,  therefore,  have  a  right 
to  malie  a  defense,  control  the  proceedings,  or  appeal  from  the 
judgment.  Persons  not  having  these  rights  are  regarded  as 
stranixers  to  the  action. i 

§  125.  In  Legal  Actions. — So  far  as  this  general  statement 
is  concerned,  it  applies  equally  to  actions  under  the  common- 
law  system  and  to  actions  under  a  code ;  but  the  mode  by 
"which  the  interest  which  makes  one  a  proper  or  necessary  party 
is  determined  is  very  diffeient.  In  an  action  at  law,  umler  the 
old  system,  the  plaintiff  must  be  a  person  in  whom  is  vested 
the  whole  legal  right  or  title ;  and  if  there  were  m  ae  than  one, 
they  must  all  be  equally  entitled  to  the  recovery ;  that  is,  the 
right  must  dwell  in  them  all  as  a  unit,  and  the  judgment  must 
be  in  their  favor  equally,  and  the  defendants  must  be  equally 
subject  to  the  common  liability,  and  judgment  must  be  ren- 
dered against  them  all  in  a  body.  The  necessity  of  joining  all 
as  plaintiffs  in  whom  was  vested  the  whole  le.  al  title,  was  im- 
perative ;  but  in  certain  cases  the  plaintiff  had  the  right  to  elect 
whether  he  would  sue  all  who  were  liable;  but  wherever  judg- 
ment passed  against  two  or  more  defendants,  it  was  necessarily 
joint. 

§  126.  In  Equitable  Actions. — The  suit  in  equity,  how- 
ever, was  hampered  by  no  such  arbitrar}'  requirements.  Its  form 
was  controlled  by  two  general  aii<l  natural  principles:  1.  That 
it  should  be  prosecuted  by  the  party  beneficially  interested,  in- 
stead of  the  party  who  had  the  apparent  legal  right  and  with 
him  might  be  joined  all  others  wiio  had  an  interest  in  the  subject- 
matter,  and  in  obtaining  the  relief  demanded;  and  2.  That  all 
persons,  whose  presence  was  necessary  to  a  complete  determina- 

^  Van  Camp  v.  Commissioners  etc,  2  West  Coast  Rep.  18. 


60  GENERAL  PRINCIPLES.  §   127. 

tion  and  settlement  of  the  questions  involved,  should  be  parties 
plaintiff  or  defendant,  so  that  all  their  rights  and  interests, 
whether  joint  or  several,  or  however  varied  as  to  importance  or 
extent,  m'ght  be  determined  and  adjusted  by  tlie  court.  It 
was  not  necessary  that  the  decree  shoirld  pass  in  favor  of  all 
the  plaintiffs  for  the  same  right  or  interest,  nor  against  all  the 
defemlants,  enforcing  the  same  obligation.  Relief  could  be 
granted  the  defendant,  or  one  of  several  defendants,  against 
the  plaintiffs,  or  against  the  other  defendants. 

§  127.  Equitable  Doctrines  Adopted  by  Cades.— The 
codes  of  proceilure  of  the  different  states,  while  differing  some- 
what in  the  details  of  their  provisions,  agree  sul)stanliully  in 
adopting  the  rules  observed  by  courts  of  equity  in  regard  to 
parties  in  the  two  features  above  named. ^ 

§  128.  Cause  of  Action,  Meaning  of. — Tn  every  case 
there  must  be  a  "  cause  of  action;"  that  is,  a  right  on  the  part 
of  one  person,  the  plaintiff,  combined  with  a  violation  or  in- 
fringement of  that  right  by  another  person,  the  defen  lant. 
The  expression  "cause  of  action"  includes  in  its  meaning  all 
the  facts  wliich  together  constitute  the  action,  and  therefore  we 
can  not  conceive  of  a  cause  of  action  apart  from  the  person  who 
alone  has  tlie  right  to  maintain  it.^ 

§  12'J.  The  right  which  is  violated  or  is  infrin'jed  may  be 
one  whicli  is  creaied  by  a  contract  or  agreement,  express  or  im- 
plied, or  it  may  be  a  natural  right,  or  one  which  exists  in  favor 

*  Pomproy's  Remedips  and  Reme-  of  an  antecedent  prim.iry  riarlit  and 
dial  Rigiiis,  sec*.  19:)-2')0.  cnrrespoiiding  duty.  hikI  h  delict  or 

*  III  iiMiilyzinu;  the  expression  "cause  breae-h  of  such  primary  riijht  and 
of  nctiu'i,''  as  used  in  tlie  code,  Mr.  duty  by  the  person  on  whom  the 
Pomeroy  says:  "Every  action  is  duty  rests.  Every  julieial  actioa 
brougltt  in  t)r(lor  to  nbtain  some  par-  must  therefore  involve  the  follow- 
ticular  result  whioii  we  call  therein-  ing  elements:  a  prim  iry  right  pos- 
edy,  which  the  code  calls  the 'relief,'  sessi'd  hy  the  plaintitt.  «iid  a  corre- 
and  which,  when  granted,  is  summed  spondingprimary  duly  devolving  upon 
up  or  embodied  in  the  judgment  of  the  dcendant;  a  delict  or  wri>ng  done 
the  court  This  re-ult  is  not  the  by  the  defendant,  which  consisted  in 
'cause  of  action'  as  that  term  is  used  a  breach  of  such  primary  right  and 
in  the  codes.  It  is  true  this  final  re-  duty;  a  remedial  ri;ihl  in  fuvor  of  the 
Bult,  or  rattier  the  desire  of  obtaining  plaintiff,  a  id  a  rem 'dal  duly  resling 
it,  is  the  p  imary  motive  which  a>  is  on  the  deiendant,  springii.g  from  this 
upon  the  will  of  the  plainlift',  and  im-  delict,  and  finally  the  remedy  or  relief 
pels  him  to  commence  the  proceeding,  itself.  Every  action,  however  com- 
and  in  the  metaphy-iical  sense  it  can  plicated  or  however  simple,  must  con- 
properly  be  called  the  cause  of  this  tain  these  essential  elements.  Oi  these 
action;  hut  it  is  certainly  not  so  in  elements  the  primary  right  and  duty 
the  legal  sense  of  the  phrase.  Tliis  and  the  delict  or  wrong  combined 
final  result  is  the  'object  of  the  ac-  constitute  the  cause  of  action  in  the 
tion,'  as  that  t(!rin  is  trequently  used  legal  sense  of  the  term,  and  as  it  is 
in  the  codes  and  in  modern  legal  used  in  the  codes  of  the  several 
terminology.  It  was  shown  *  *  *  slates:"  lleuaedies,  etc.,  sec.  453. 
that  every  remedial  right  arises  out 


§   129.  PARTIES  TO  CIVIL  ACTIONS.  61 

of  the  plaintiff  as  against  every  other  person  independently  of 
any  contract  or  agreement;  and  hence,  though  codes  prescribe 
but  one  form  of  action,  yet  the  right  which  underhes  and  forms 
the  basis  of  the  cause  of  action,  naturally  divides  civil  actions 
into  two  primary  classes  or  divisions,  viz. :  actions  ex  contractu, 
for  the  violation  of  contract  rights,  and  actions  ex  delicto,  for 
the  violation  of  natural  rights. 

Thus  in  the  case  of  a  written  contract,  wherein  A.  agrees  to 
sell  and  deliver  certain  goods  to  B.,  and  B.  agrees  to  pay  A.  a 
certain  price,  at  a  time  named,  therefor,  a  relation  is  established 
at  once  between  the  parties,  and  the  contract  itself  discloses, 
in  the  light  of  the  facts  constituting  the  breach,  who  the  party 
is  who  is  entitled  to  maintain  an  action  therefor,  and  agfainst 
whom  it  must  be  brought.  The  right,  as  well  as  the  liability, 
is  fixed  by  the  contract,  and  can  not  exist  independently  of  it. 
But  in  case  of  a  tort,  as  if  A.  wrongfully  imprisons  R.,  the 
right  of  B.  to  his  personal  liberty  exists  against  all  the  world ; 
but  the  right  having  been  violated  only  by  A.,  he  alone  is  liable 
to  an  action  therefor.  This  right  of  personal  liberty  is  abso- 
lute; it  constantly  exists,  and  does  not  depend  upon  any  con- 
tract or  other  relation  of  the  parties  formed  by  themselves, 
while  in  tlie  other  case  the  right  is  created  by  the  parties,  and 
can  not  exist  without  it.  Upon  this  difference  depends  the  dis- 
tinction between  actions  on  contract  and  actions  for  tort. 

This  difference  also  lies  at  the  foundation  of  the  rule  that, 
independently  of  a  statute  authorizing  it,  a  right  of  action  for 
a  tort  could  not  be  assigned ;  whilst  a  contract,  or  right  based 
upon  a  contract,  could,  at  least  so  far  as  to  vest  the  beneficial  in- 
terest in  the  assignee,  it  being  considered  that  a  natural 
right,  one  which  the  party  could  not  create,  he  could  not 
transfer.  It  is  not  our  purpose,  however,  to  discuss  in  this 
connection  the  several  kinds  of  c  )ntracts  classed  as  negotiable 
and  non-negotiable,  nor  the  different  kinds  of  torts  as  affecting 
the  person  or  property,  and  the  distinction  to  be  taken  between 
them. 


6S  GENERAL  PRINCIPLES.  §  130. 

CHAPTER  V. 

PARTIES  PLAINTIFF— REAL  PARTF  IN  INTEREST. 

§  130.  Provision  of  Codes. — All  the  states  having  a  well- 
defined  code  of  practice  or  civil  procedure,  except  Georgia, 
have  adopted  the  same  general  rule  as  to  parties  plaintiffs,  viz. : 
*' Every  action  must  be  prosecuted  in  the  name  of  the  real  party 
in  interest."  To  this  general  rule  each  code  names  certain 
exceptions,  which  will  be  hereafter  noticed.  This  general  rule 
applies  to  all  actions,  whether  founded  upon  a  tort  or  upon  a 
contract.^ 

§  131.  Who  is  Real  Party  in  Interest. — Where  codes 
do  not  prevail,  actions  upon  contracts  must  be  brought  in  the 
name  of  the  party  in  whom  the  legal  interest  is  vested,  or  whose 
legal  interest  has  been  injuriously  affected ;  and  the  legal  inter- 
est was  held  to  be  vested  in  him  to  whom  the  promise  was  made, 
and  from  whom  the  consideration  passed.  Thus,  in  an  action 
for  breach  of  contract,  where  no  other  person  has  acquired  an 
interest  in  the  matter  in  dispute,  only  the  parties  to  the  con- 
tract sued  on  should  be  made  parties  to  the  suit.* 

But  the  party  in  whom  the  legal  interest  is  vested  is  not 
always  the  real  party  in  interest.  "  The  real  party  in  interest" 
is  the  party  who  would  be  benefited  or  injured  by  the  judg- 
ment in  the  cause.  The  interest  which  warrants  mnking  a  per- 
son a  party  is  not  an  interest  in  the  question  involved  merely, 
but  some  interest  in  the  subject-matter  of  litigation. ^  The  rule 
should  be  restricted  to  parties  whose  interests  are  in  issue,  and 
are  to  be  affected  by  the  decree.'*  The  interest  of  the  plaintiff 
must  be  connected  with  the  subject-matter  of  the  action  upon 
which  the  defendant  is  lial)le,  though  it  is  not  necessary  that 
he  should  be  connected  to  it  by  a  legal  title.     Hence,  in  actions 

1  As  to  the  effect  of  thi*  provision  ment  of  a  thing  in  action  not  arising 

of  the  code  in  auihorizing  suits  by  tin  out  of  contract." 

assignee,  and  on  the  assigiiar)iliiy  of  *  Barber  v.  Oazalis,  80  ("al.  93. 

causes  of  action,  see  pos^,  subdivision  *  Viillotte    v.    WliitewHlcr     Vnlley 

first  of  Forms  of  C.)rnpl:iint?,  chapter  Canal  Co.,  4  MoLejin,   19J;  5   WvsU 

L.    Actions    by    Assignee.     In    N(!W  Liw  Jour.  80;  see   Kerr  v.  Watts,  6 

York,     Indiana,     Kansas,     Missouri,  Wiu'Ht.  550. 

Wisconsin,  Florida,  S  >uth    Cirolina,  *  Mechanics'  Bink  of  Alexandria  v. 


Kentucky,   Oregon,   Nfvalu,  Dakota.     Seton.  1    Pet.  299;  Eiinendorf  v.  Tay- 
North     Carolina,     Washington,     and    '   "   '"  ''"      '     "■'     "  "'   ' 

Montana  the  furthi-r  provision  is 
added:  "But  this  section  shall  not 
be  deemed  to  authorize  the  assitfn- 


North  Carolina,  Washington,  and  lor,  10  Wheat.  152;  Story  v.  Living- 
Montana  the  furthi-r  provision  is  sfon  Ex'x,  etc,  13  Pet.  859;  United 
added:    "But    this    section  shall  not    Slates  v.  Parrott,  1  MuAU.  271. 


§   132.  REAL  PARTY  IN  INTEREST.  63 

ex  contractu,  the  parties  must  stand  related  to  the  contract 
which  forms  the  basis  of  the  action. 

Even  equity  will  not  make  a  defendant  liable,  upon  a  con* 
tract,  to  a  plaintiff  who  is  neither  a  part}'  to  the  contract,  nor 
the  legal  or  equitable  owner  of  the  contract  right  to  the  subject- 
matter  of  the  suit,  nor  the  legal  representative  of  such  owner. 
For  example:  A.  contracts  with  B.  to  sell  and  deliver  to  him 
certain  goods.  B.  sells  the  same  goods  to  C.  and  agrees  to  de- 
liver them  to  him  in  the  same  manner  he  would  if  the  goods 
were  already  in  his  possession.  A.  fails  to  deliver  them  to  B., 
and  B.  therefore  canuot  deliver  them  to  C.  In  such  case  C.  can 
not  maintain  an  action  aj^ainst  A.  for  the  non-delivery  of  the 
goods,  notwithstanding  B.  would  have  delivered  to  C.  if  he 
had  received  them ;  there  being  no  privity  between  C.  anl  A., 
that  is,  C.  is  in  no  way  rolated  to  the  contract  by  which  A.  had 
agreed  to  deliver  them ;  but  it  would  be  otherwise  if  B.  had  as- 
signed his  contract  with  A.  to  C.  Nor  would  it,  in  the  case 
above  supposed,  be  any  defense  to  an  action  brought  by  B. 
against  A.  for  non-deliverj',  that  B.  had  resold  the  goods  to  C. , 
and  that  C.  did  not  intend  to  sue  B.  for  the  non-delivery: 
Gunter  v.  Sanchez,  1  Cal.  50.  It  is  perfectly  apparent  that 
these  two  executory  contracts  created  no  relation  between  A.  and 
C,  nor  between  C.  and  the  property,  for  the  property  never 
passed  from  A.  because  of  the  non-delivery. 

If,  however,  the  contract  between  A.  and  B.  had  vested  the 
property  in  B.,  and  by  the  second  contract  the  same  property 
became  vested  in  C,  the  latter  might  maintain  an  action  against 
A.  concerning  it ;  or,  if  the  goods  after  the  sale  to  B.  had  re- 
mained in  A.'s  hands  as  bailee,  he  would  be  liable  to  an  action 
by  C.  for  the  non-delivery  of  the  goods ;  but  in  that  case  the 
bailment,  though  it  may  have  been  created  by  the  terms  of  the 
contract  between  A.  and  B.,  is  in  fact  a  separate  contract  from 
the  sale,  and  imposes  the  duty  upon  A.  of  delivering  the  goods 
to  whomsoever  may  be  the  owner  at  the  time  they  are  demanded, 
and  this  dut^  is  the  synonym  of  an  implied  contract  to  deliver 
them  to  C. ,  he  having  become  the  owner ;  and  this  implied  con- 
tract must  be  the  basis  of  the  action  brought  by  C.  In  such 
action,  it  is  true,  it  may  be  necessary  to  prove  both  contracts, 
because  in  the  case  supposed  these  contracts  show  the  facts 
from  which  the  implied  contract  arises,  viz. :  the  bailment  and  the 
ownership. 

§  132.  When  Promise  is  for  Benefit  of  Third  Person. 
In   regard  to  actions    upon    promises   made  for  the  benefit  of 


64  GENERAL  PRINCIPLES.  §    132. 

third  persons,  there  has  been  much  conflict  in  the  decisions  of 
the  courts  of  the  different  states,  especially  among  those  which 
retain  the  common-law  system  of  procedure  as  to  the  right  of 
such  third  person  to  maintain  an  action  against  the  promisor. 
In  a  majority  of  such  latter  states,  however,  the  doctrine  is 
now  settled  that  such  right  of  action  exists.  Thus  in  a  recent 
casein  New  Jersey  the  court  said:  ''The  doctrine  is  well  set- 
tled in  this  state  that  if,  by  a  contract  not  under  seal,  one  per- 
son makes  a  promise  to  another  for  the  benefit  of  a  third,  the 
third  may  maintain  an  action  on  it,  though  the  consideration  did 
not  move  from  him."' 

The  action  of  asstimpsit,  at  common  law,  could  not  be  main- 
tained upon  such  promise,  unless  upon  the  theory  that  there 
was  an  implied  promise  to  the  creditor,  for  in  that  form  of  ac- 
tion the  plaintiff  is  obliged  to  aver  a  promise  to  himself;  and  if 
such  promise  may  be  implied,  there  is  no  reason  for  confining 
the  right  of  action  to  any  class  of  cases  where  a  consideration 
sufficient  to  support  any  contract  between  strangers  has  passed 
to  the  party  making  the  promise.  If,  however,  the  action  is 
brought  in  "case"  instead  of  assumpsit,  ther-e  would  be  good 
grounds  for  the  distinction. 

Under  the  code,  which  not  only  abolishes  the  distinctions  be- 
tween actions  at  law  and  suits  in  equity,  but  requires  that  every 
action  shall  be  brought  in  the  name  of  tl\e  real  party  in  inter- 
est, there  would  seem  to  be  little  doubt  of  the  right  of  the 
party  for  whose  benefit  the  promise  was  made  to  maintain  the 

1  Price  V.  Trosdell,  1  Stew.  200.  asido,  it  was  held  that  he  wa?  en- 
Tho  CH<e  to  which  the  court  referred  titled  to  recover  his  sahiry  (or  the 
as sottlinw  thiit  doctrine  in  that  state  whole  period.  The  court  said:  "It 
was.Ioslin  V.  The  N.  J.  CarSpringCo.,  is  stated  in  some  of  the  autliorilies 
7  Vroorn,  141.  The  facts  in  thu  hit-  cited,  as  a  result  of  a  review  of  cases, 
tercase  (which  w>s  an  action  at  law)  that  this  is  now  well  settled  as  a  gen- 
were,  th  it  the  pi  tintitf  was  employed  eral  rule.  It  must  bo  borne  in  mind, 
as  foreman  by  Fields  &  Iving,  mm-  however,  that  this  case  falls  within  a 
ufacturers,  at  a  sal  try  of  two  thou-  special  class  of  cases  where  the  party 
Band  dollars  a  year  from  February  1,  who  m  ikes  the  promise  has  received 
1870,  to  October  31,  1871,  at  which  from  the  party  to  whom  the  promise  is 
last  dale  the  defendants  bought  m  ide,  money  or  property,  from  or  out 
Fields  &  King's  stxjk  and  assets,  as-  of  which  he  is  to  pay  creditors  of  the 
sumod  their  liabilities,  and  carried  on  second  parly:  See  .Vinllen,  Alm'x.  v. 
their  business.  Tiie  plaintiff  assented  Whiftple,  1  Gray  (Xliss.),  317;  and  in 
to  this  transfer  of  liability,  and  con-  this  cia-is  of  cases  llie  right  of  the  cr-d- 
tinued  to  act  as  foreman  up  to  .Jan-  itor,  the  party  for  whose  benefit  the 
uary,  1872,  when  he  wis  discharge  1.  promise  was  made,  to  reciver,  is,  wq 
This  action  wis  brought  to  recover  think,  <ustiined  by  the  w -ight  of  au- 
from  the  defendants  his  salary  from  thority."  See  also  Se  vman  v.  W.iil- 
February  1,  1370,  to  January,  1372.  n^y,  35  Am.  Dec.  618;  Burrows  v. 
The  jury  returned  a  verdict  in  his  Turner,  Id.  6J2;  Birker  v.  Backlin, 
favor,  and  on  a  rule  to  show  cause  43  I  i.  72t3,  aad  cases  cited  in  notes 
why  the  verdiut  should  not  be  set  thereto. 


§   134.  ACTIONS  FOUNDED  ON  CONTRACT.  65 

action,  althougfh  such  promise  is  contained  in  a  writing  under 
seal.  Nor  does  this  conflict  with  the  rule  above  laid  down, 
that  "the  plaintiff  must  stand  related  to  the  contract,  for  the 
test  is  not  the  1»  gal  but  the  equitable  title,  right,  or  interest,  and 
that  interest  is  directly  created  by  the  contract."* 


CHAPTER  VI. 

PARTIES  PLAINTIFF— ACTIONS  FOUNDED  ON  CONTRACT. 

§  133."  How  Plaintiffs  Relation  to  the  Contract  may 
Arise. — The  relation  to  the  contract  necessary  to  enable  one 
to  maintain  an  action  upon  it  may  be  created  in  many  different 
ways:  1.  By  the  contract  itself,  as  in  the  case  of  the  original 
parties  to  the  contract;  2.  By  transfer  or  assignment ;  3.  By 
operation  of  law,  as  in  the  case  of  executors  or  administrators 
of  a  deceased  party  to,  or  assignee  of,  a  contract ;  4.  By  aid  of 
the  law,  as  in  case  of  attachment  or  garnishment  of  debts  due, 
or  property  in  possession ;  but  in  most  states  this  is  a  special 
proceeding  in  aid  of  an  action  pending;  or  for  the  enforcement 
of  a  judgment  rendered.  Wliile  in  some  states,  as  in  Michigan, 
although  a  suit  must  first  be  commenced  against  the  principal 
defendant  before  a  writ  of  garnishme  it  can  be  obtained  against 
one  indebted  to  him,  yet  the  afB  lavit  for  the  writ  and  the 
answer  of  the  garnishee  form  an  issue  between  thein,  and  the 
case  is  docketed  and  tried  as  an  independent  suit,  and  a  judg- 
ment is  rendered  therein  for  or  against  the  garnishee,  as  in 
other  actions,  but  as  the  garnishee  of  the  principal  debtor. 
Although  the  plaintiff  in  this  proceeding  is  subrogated  by  force 
of  the  statute  to  the  rights  of  the  defendant  in  the  principal 
case,  yet  it  is  more  analogous  to  process  of  attachment  against 
the  principal  debtor's  property,  by  which  a  lien  is  secured  upon 
it  In  advance  of  tlie  judgment,  since  judgment  can  not  be 
obtained  against  the  garnishee  until  the  plaintiff  has  obtained 
judgment  against  the  principal  defendant,  and  the  moneys 
obtained  by  the  proceeding  must  be  applied  to  the  satisfaction 
of  the  principal  judgment,  and  does  not  otherwise  become  the 
property  of  the  plaintiff. 

§  134.     Joinder  of  Plaintiffs  Generally. — The  provisions 
of  the  code  in  respect  to  the  joinder  of  parties  plaintiff  are  bor- 

1  Wi^nfins   V.  MoDmald,  13    Cal.    seq.,    where  this  subject  ia  diacussed 
126 ;  Pom-roy's  Roraedies,  aec  139  et    at  length. 
EsTfiK,  Vol.  1-5. 


'66  generalprincipi.es.  §  134. 

Towed  from  the  former  equity  practice,  and  are  as  follows:  "  All 
persons  having  an  interest  in  the  subject  of  the  action,  and  in 
obtaining  the  relief  demanded,  may  be  joined  as  plaintiffs,  ex- 
cept when  otherwise  provided." ^  And  "of  the  parties  to  the 
action  those  who  are  united  in  interest  must  be  j  >ined  as 
plaintiffs  or  defendants ;  but  if  the  consent  of  any  one  who 
should  have  been  joined  as  plaintiff  can  not  be  obtained,  he 
may  be  made  a  defendant,  the  reason  thereof  being  stated  in 
the  complaint,"  (or  petition). ^  These  sections,  as  well  as  the 
one  which  provides  that  all  actions  shall  be  prosecuted  in  the 
name  of  the  real  party  in  interest,  have  many  exceptions,  which 
will  be  hereafter  noticed. 

The  defendant  in  an  action  who  has  made  but  one  contract 
or  incurred  a  single  liability,  obviously  has  the  right  to  require 
that  the  whole  case  be  disposed  of  in  one  action.  Tliere  may 
be  cases  of  a  contract  made  with  two  or  more  persons  of  such 
naturp  that  a  particular  breach  by  the  one  party  may  injure  but 
one  of  several  persons  who  form  the  other  party  to  the  contract ; 
and  in  such  case  only  the  person  who  has  sustaine  I  damages, 
and  who  would  be  entitled  to  receive  compensation  for  the 
breach,  need  sue ;  but  wherever  the  damages  are  sustained  by 
all  of  several  constituting  one  of  the  parties  to  the  contract,  all 
must  join  as  plaintiffs,  unless  the  contract  itself  severs  the  in- 
terest of  each  from  the  other,  or  unless  the  amount  to  which 
each  is  entitled  has  been  determined  by  the  mutual  agreement 
of  both  parties  to  the  contract,  which  of  course  would  amount 
to  a  several  liquidation,  and  would  enable  each  party  to  sue 
separately  for  his  sh  ire ;  the  contract  and  the  breach  in  such 
case  being  only  matter  of  indnceraent. 

"A  contract  by  one  person  with  two  jointly  does  not  com- 
prehend or  involve  a  contract  with  either  of  them  separately, 
as  is  evident  from  the  well-known  doctrine  that  a  covenant 
or  promise  to   two,  if  proved  in  an  action  brought  by   one  of 

*  Arizona,  sec.   12;  California,   sec         '  New  York,8ec.  119;  T?iriinnR,  sec. 

878;  New  York  (I87ti),  siec.44f);  Ohio,  19;  Crtlit'ornia,  sec.  3f<2;  Wisconsin, 

sec.  34;  Indiana,   sec.   70;  K<MitU''l<y,  c.    122,   sec.   20;    Flnridi.   sec.     70; 

sec.    22;  Arkiinsas,   sec.    4175;    Mis-  South    Carolina,    sec.    H2;    Dakota, 

souri,  sec.  4;  Iowa,   soc.  '25i5;   Wis-  sec.  72;    Oregon,  see.    3H1;    Nevada, 

consin,  c.   122,  sec.    18;    Kiiisa*,  S'-c.  sec.  14;  Ohio,   sec.  80;   ivan-^as,  sec. 

85;   Ni'bniska,  see.  37;    Nt^vada,  sec.  37;  Iowa,  sec.    2518;  Ncfhraska,  see. 

12;  Oregon,  sec.  380  (limited  to  eqni-  39;  Kentucky,  sec,  36;  Missouri,  sec 

table    actions);  North  Canilinfi,   sec.  6;    North    Carolina,   sec.  fi2;    Idaho, 

60;  South  Carolina,  S3C.  140;  Florida,  sec.    14;   Washinsiton,    sec.    8;  Mon- 

sec.  68;  Colorado,  sec.  11;   M xitiiia,  tana,  sec.  14;  Arizona,  sec.  14;    Wy- 

sec.  12;  Wyoming;,  sec.  40;  Dakota,  oraing,  sec.  42 ;  Colorado,  sec. — . 
70;  Washington,  sec.  8. 


§   137.  ACTIONS  FOUNDED  ON  CONTRACT.  67 

them,   sustains   a  plea  which  denies  the  existence  of  the  con- 
tmct."! 

§  135.  Flainti£fs  must  Represent  Entire  Cause  of  Ac- 
tioa. — The  question  as  to  the  joinder  of  parties  being  one  of 
the  i)rincipal  grounds  of  demurrer,  is  one  of  great  importance 
and  frequent  adjudication.  It  follows  from  the  statement  that 
the  plaintiff  or  plaintiffs  must  represent  the  entire  cause  of  ac. 
tion  (tlint  is,  that  the  cause  of  action  can  not  be  divided),  that 
all  who  are  interested  in  the  cause  of  action  and  in  obtaining 
the  relief  sought,  must  be  joined  as  plaintiffs.  We  use  the 
words  "represent"  and  "interested"  in  the  sense  used  in  the 
codes.  The  person  or  persons  who  "represent"  the  entire 
cause  of  action  must  be  "  the  real  party  in  interest." 

§  136.  Refusal  of  Plaintiffs  to  Join. — Exceptions  to  the 
foregoing  general  rule  existed  at  common  law,  and  are  provided 
for  in  the  codes.  The  death  of  one  of  the  persons  thus  interested, 
or  his  refusal  to  join,  have  been  held  sufficient  reasons  for  the 
failure  to  make  such  person  a  co-plaintiff,  the  reason  appearing 
in  the  complaint,  and,  in  case  of  refusal  to  join,  he  should  be 
made  a  defendant.^ 

But  in  such  case  the  recovery  must  be  entire,  and  for  the 
whole  interest,  so  that  the  defendant,  against  whom  the  recovery 
is  had  may  not  be  subjected  to  a  second  action ;  while  those 
jointly  entitled  to  the  recovery,  though  one  of  them  is  a  defend- 
ant, being  both  before  the  court,  may  have  their  mutual  rights 
and  interests  adjusted  in  the  same  decree  of  judgment;  or  if 
from  a  complication  of  accounts,  as  between  partners,  that  is 
inccjnvenient,  the  recovery  must  enter  into  the  accounting  be- 
tween them.  The  person  thus  made  a  defendant  is  equally 
with  the  plaintiff  bound  by  the  judgment  or  decree. 

§  137.  Where  Parties  are  Numerous.— In  equity,  the 
rule  that  all  persons  materially  interested  must  be  made  parties 
was  always  dispensed  with  where  it  was  impracticable,  or  very 
inconvenient,  as  in  the  case  of  a  very  numerous  association  in 
a  stock  concern,  in  effect  a  partnership  ^  This  same  rule  is  em- 
bodied in  the  code,  which  provides  that  where  the  parties 
are  numerous,  and  it  is  impracticable  to  bring  them  all  before 
the  court,  or  where  the  question  is  one  of  commo  i  or  general 
interest,  one  or  more  may  sue  or  defend  for  the  benefit  of  all. 

1  Wetherell  v.  Langston.  1  Ex.  644.  665 ;    Moody  v.  Sewall,  14  Me.  296, 

»  See  California  Code  of  Civil  Pio-  ante,  spc.  134,  n. 

cedure,  sec.  882,  and  NitjhlingHle  v.  *  Cock  burn  v.  Thompson,  16  Ves. 

Scannell.  6   Cal.   509,  and  8.  C.  18  821;  btory's  Eq.   PU  t'eo.   185:   Gor- 

Id.  822 ;  Hay»  y.  Lasater  et  al.,  8  Ark.  man  t.  Kiusell,  14  Cal.  540. 


68    '  GENERAL  PUINCIPLES.  §    138 

It  wouM  be  very  difficult  to  lay  down  nny  positive  rule  by  wliich 
the  degree  of  the  inconvenience  which  wuuld  justify  the  omis- 
sion could  be  absolutely  determined.  Other  cireumstnnces 
aside  from  the  numbers  must  often  enter  into  a  i)rot)er  dt-ter- 
minalion.  The  exigencies  of  the  case,  the  necessity  for  prompt 
action,  the  hazards,  or  inevitable  loss  from  delay,  might  justify 
the  omission  in  one  case,  while  in  another  all  the  defendjints, 
though  equally  numerous,  should  be  brought  in.  The  facts 
relied  upon  to  justify  the  omission  should  be  clearly  stated  in 
the  complaint,  and  become  a  matter  for  judicial  decision,  gov- 
erned by  the  spirit  of  the  code  and  the  facts  of  the  particular 
case.i 

§  138.  Common  Interest,  What  is. — The  test  of  the  unity 
of  interest  referred  to  in  this  section  is  that  joint  connection 
with,  or  relation  to,  the  subject-matter  which,  by  the  rules  of 
the  common  law,  will  preclude  a  separate  action.  It  refers  to 
such  cases  as  joint  tenants,  co-trustees,  partners,  joint  owners, 
or  joint  contractors  simply.'  In  all  these  cases  the  right,  to 
assert  or  protect  which  the  suit  is  brought,  is  one  which  exists 
against  them  all,  or  the  obligation  to  be  enforced  is  common  to 
them  all;  then,  if  it  is  impracticable  to  bring  them  all  before 
the  court,  one  may  sue  or  defend  for  all.^  The  rule  which  per- 
mits the  amission  of  parties,  and  the  filing  of  a  bill  by  one  in 
behalf  of  all  the  others,  is  founded  on  necessity,  and  is  estab- 
lished to  prevent  a  failure  of  justice  which  could  not  be  other- 
wise avoided.* 

§  139.  Actions  by  Joint  Tenants  and  Tenants  in  Com- 
mon.— ^The  code  of  California,  following  in  this  respect  the 
majority  of  the  codes  of  the  various  states,  provides  that  "all 
persons  holding  as  tenants  in  common,  joint  tenants,  or  copar- 
ceners, or  any  number  less  than  all,  may  jointly  or  severally 
commence  or  defend  any  civil  action  or  proceeding  for  the  en- 
forcement or  protection  of  the  rights  of  such  party.  ^  It  is 
also  provided  that  "  any  two  or  more  persons  claiming  any 
estate  or  interest  in  lands  under  a  common  source  of  title, 
whether   holding  as  tenants   in   common,  joint  tenants,    copar- 

1  In  Andrews  v.   Mokelumne  Hill  nam  v.  Brett,  85  Barb.  69f>;  Gibbons 

Co.,  7  Gal.  333,  it  was  held  that  sec-  v.  P.^alta,  21  Cal.  6:^2,  6:^3. 

tion  14  in  the  former  practice  act  was  '  K«id  v.  The  Evergreens,  21  How. 

intended  to  apply  to  suits  in  equity,  (N.  Y.)  319. 

and  not  to  actions    at  law.     Subse-  *  Bouton   v.   City  of  Brooklyn,   15 

quent  decisions  of  this  court  abolished  Barb.  376;    Smith  v.   Lockwood,    13 

all  distinctions  between  the  actions  at  Id.  209;    Towner  T.  Tooley,  88  Id. 

law  and  suits  in  equity  in  this  respect.  698. 

s  Jones  T.  Fttlch,  8  Bosw.  63;  Buck-  «  California  Code  C.  P.,  sec.  384. 


§  139.  ACTIONS  FOUNDED  ON  CONTRACT.  69 

ceners,  or  in  severalty,  may  unite  in  an  action  against  any  per- 
son claiming  an  adverse  estate  or  interest  therein,  for  the  pur- 
pose of  determining  such  adverse  claim,  or  of  establishing  such 
common  source  of  title,  or  declaring  the  same  to  be  held  in 
trust,  or  of  removing  a  cloud  upon  the  same."^ 

At  the  common  law,  joint  tenants  were  required  to  join  in  an 
action  of  ejectment,  and  the  failure  to  do  so  was  fatal  to  a  re- 
covery.2  While  two  or  more  co-tenants  could  not  join  in  an 
action  of  ejectment,  the  interest  of  each  being  separate  and 
distinct.3  But  under  this  provision  the  right  of  one  tenant  in 
common  to  recover  in  an  action  of  ejectment  the  possession  of 
the  entire  tract  as  against  all  persons  but  his  co-tenants,  has 
been  repeatedly  upheld.*  Or  he  mny  sue  alone  for  his  moiety  ;5 
or  may  in  equity  obtain  a  partition.^  And  these  rules  apply 
equallj'  to  the  grantee  of  the  tenant  in  common."'  So,  also,  ex- 
ecutors and  administrators  can  maintain  such  action  jointly 
with  the  other  tenants  in  common  in  all  cases  where  their  testa- 
tors or  intestates  could  have  done  so,  until  the  administration  of 
the  estates  they  represent  have  closed,  or  the  property  distrib- 
uted under  the  decree  of  the  probate  court.^  But  if  an  estate 
should  be  sold  in  lots  to  different  purchasers,  they  could  not 
join  in  exhibiting  one  bill  against  the  vendor  for  specific  per- 
formance; but  where  there  was  a  contract  to  convey  with 
but  one  person,  under  which  the  purchaser  conveyed  his  equi- 
table interest  of  a  moiety  to  each  one  of  two  persons,  it  was 
held  that  these  two  persons  might  sue  the  original  vendor  for 
specific  performance.'  And  wbere  one  tenant  in  common  sells 
the  right  to  a  stranger  to  cut  timber  off  the  common  property, 
another  tenant  in  common  of  the  same  property  can  not  maintain 
replevin  for  the  timber  after  it  is  cut. '"  After  severance  of  a 
fund  held  in  common,  each  party  may  maintain  a  separate  action 
for  his  ascertained  share.^ 

1  California  Code    C.  P.,   sec   381,  Tripp  v.  Riley,  15  Id.  833;   Bebee  ▼. 

effe<t  July  1,    1874;   see,  also,  sees.  GriBiiij.  4  Kern.  235. 

884.  738,  and  1452.  '  vStark  v.  Barreit,  15  Cal.  Sfil,  ap- 

*  Dewey  v.  Lambier,  7  Cal.  847.  proved  in  Touchard  v.  Cr«iw.  21   Id. 

*  Uh  .Johnson  v.  Sepulboda.  5  Cal.  162;  Hart  v.  Robertson,  Id.  348;  Ma- 
149;  Tlirockmorton  V.  Burr,  Id.  401 ;  honey  v.  Van  Winkle,  Id.  583;  Reed 
■W-lch  V.  Sullivan,  8  Id.  187.  v.vSpicer,  27  Id.  64;  CarpiMiter  v.Web- 

4  Touchard  v.   Crow.    20   Cal,  150;  ster,  Id.660;  Sewardv.  Mulotte,  15  Id. 

Stark  V.  Barrett,  15  Id.  37 1  ;    Mahonev  801. 

V.  Van  Winkle,  21  Id.  583 ;    Galler  v.        «  Reynolds  v.  Hosmer,  45  Cal.  631. 
Fett,  30  Id.  4S4;  W-ise  v.   Barker,  2        »  Owen  v.  Frink,  24  Cal.  177. 
"We-t  Coast  Rep.  108.  »"  Alford  v.  Dradeen,  1  Nev.  228. 

*C..villandv.  Tanner,?  Cal.  38;  Col-       "  Qf  n.  MuU  Ins.  Co.  v.   Benson,   6 

lier  V.  Corbett,  15  Id.  18  ?.  Duer,  108. 

*  Tiuuej  T.  Stebbius,  28  Barb.  290; 


70  GENERAL  PRINCIPLES.  •  §   140. 

§  140.  Actions  by  Joint  Owners  of  Chattels. — Both  at 
ttie  commoa  law  and  under  the  code  a  co-owner  of  a  chattel 
can  maintain  no  action  to  enforce  his  propiietary  rights  therein 
without  joining  his  co-owners.  Thus  one  co-owner  can  not  re- 
cover possession  of  the  common  property  from  his  co-owner 
who  is  in  the  exclusive  possession  thereof,  in  an  action  in  the 
nature  of  replevin,^  Thus  tenants  in  common  of  wool,  who  be- 
came such  by  one  of  them  letting  sheep  for  a  year  to  the  other 
with  an  agreement  that  the  latter  was  to  take  care  of  the  sheep, 
shear  them,  sack  the  wool,  and  deliver  it  to  the  owner  of  the 
sheep  at  S.,  a  port,  to  be  by  him  shipped  to  a  commission  mer- 
chant at  S.  F.,  to  be  sold,  and  tliat  when  the  wool  was  sold 
the  proceeds  were  to  be  equally  divided,  can  not  maintain 
replevin  against  each  other,  nor  can  one  against  the  vendee  o^ 
the  other; 2  and  the  same  necessity  exists  for  the  joinder  of  all 
the  co-tenants  in  an  action  to  recover  for  the  conversion  by  a 
stranger,^  So  also  tenants  in  common  must  join  in  an  action 
for  an  entire  injury  done  to  the  partnership  property,  either  in 
toi%  or  assumpsit  when  tort  is  waived.'*  Joint  owners  or  j  )int 
charterers  of  ships  are  tenants  in  common,  and  must  all  join  in 
an  action  affecting  the  common  property,  or  for  the  recovery  of 
freight.^ 

§  141.  Actions  oy  Executors  and  Administrators.— 
The  provision  that  every  action  must  be  prosecuted  in  the  name 
of  the  real  party  in  interest  has  certain  exceptions.  Thus  the 
code  provides  that  "an  executor,  administrator,  or  trustee  of 
an  express  trust,  or  a  person  expressly  authorized  by  statute, 
may  sue  without  joining  with  him  the  persons  for  whose  ben- 
efit the  action  is  prosecuted.  A  person  with  whom  or  in  wliose 
name  a  contract  is  made  for  the  benefit  of  another,  is  a  trustee 
of  an  express  trust,  within  tlie  meaning  of  this  section."  ^ 

In  the  case  of  executors,  it  was  formerly  the  rule  that  where 
several  were  named,  all  must  join  in  an  action,  even  th(;u;^h 
some  renounce.'     Bj?   section   1355,  California  Code,  only  those 

1  Cros^v.  FTulett.  53  Mo.  897;  Mills  »  Merritt  v.  Walsh.  82  N.  Y.  685; 
V.  MiloU.  4i  lu.l  24'(:  riull  v.  Wit-  D..im«ll  v.  WuUh,  33  Id,  43;  Buck- 
bur,  77  N.  Y.  loS;  Hill  V.  lSo!is«r.  2  rnui  v.  Bielt,  21  H  .w.  Pr.  233;  Id. 
"We^t  CoM^t  R-().  673.  13  Ab.  Pr.  ll'.t;    see  Bi.-ihop  v.  Einiis- 

»  IL'wl.tt  V    Owens,   50  Citl.  474;  ton,  13   Id.   345;    Shenivui  v.  FrHiin, 

S.  C  51   Id.  570.  30  Birb  478;    Coster  v.  N.  Y.  &   E  ie 

»  VVhitnev    v.    Stark,   8   C-tl.   514;  K.  li.  (J).,  H  Duer,  43;  Deauis  v.  Ken- 
Rice   V.    Ilotlenbeek,    19    Barh.    664;  nedv,  19  Barb.  517. 
Go<k  V.    IveiinedM,  29  id.   120;    T.ui-  «  Ijaiifornbi  U-.d')  O.  P.,  sec.  869. 
ner  V.    Hills   4i    Id.   4i8.      Bit  see  '9Uo.  37;  I  Chut.  Pi.  13;  1  rf  .und. 
Yamhill   Bridge  Co.  v.  Nowby,  1  Op.  291;   3   Bae.   32;   T.)ll.  6«;   Bodle  T. 
178.  UuUe,  5  Weud.  818. 

*  Gihnore  y.  Wilbur,  12  Pick.  120. 


§   141.  ACTIONS  FOUNDED  ON  CONTRACT.  71 

who  have  been  appointed  by  the  court  should  join ;  *'  those  ap- 
pointed have  the  same  authority  to  perform  all  acts  and  discharge 
the  trust  required  by  the  will,  as  effectually  fi)r  every  purpose  as 
if  all  were  appointed  and  should  act  together."  But  where  there 
are  two  administrators,  and  only  one  acting,  he  may  sue  alone  in 
Ms  own  ri2:ht  on  a  guaranty  executed  since  decedent's  death. i 

Under  the  code,  executors  have  the  right  to  institute  actions 
under  the  general  authority  conferred  by  statute. ^  But  the 
provision  that  an  executor  may  sue,  without  joining  with  him 
the  person  for  whose  benefit  the  action  is  prosecuted,  has  no 
application  in  case  of  an  action  for  the  construction  of  a  will.^ 

In  California,  it  is  also  provided  that  "  actions  for  the  recovery 
of  any  property,  real  or  personal,  or  for  the  possession  thereof, 
and  all  actions  founded  upon  contracts,  may  be  maintained  by 
and  against  executors  and  administrators  in  all  cases  in  which 
the  same  might  have  been  maintained  by  or  against  their  re- 
spective testators  or  intestates."^  In  such  section,  actions  to 
quiet  title  to  lands  are  omitted.  By  section  1452  it  is  provided 
"that  the  heirs  or  devisees  may  themselves,  or  jointly  with  the 
executor  or  administrator,  maintain  an  action  for  the  possession 
of  the  real  estate,  or  for  the  purpose  of  quieting  title  to  the 
same,  against  any  one  except  the  executor  or  administrator." 

As  executors  and  administrators  are  required  to  talie  into 
their  possession  all  tlie  estate  of  the  decedent,  real  and  personal 
(secti  n  1581),  they  must  have  the  right  to  maintain  an  action 
for  its  possession,  without  being  compelled  to  obtain  the  con- 
sent of  the  heirs  or  devisees,  but  it  is  not  clear  that  the  exec- 
utor or  administrator  can  bring  an  action  to  quiet  title  without 
joining  tlie  heir  or  devisee,  unier  either  of  tliese  provisions. 
However,  in  cases  where  it  became  necessary  to  the  proper  ex- 
ecution of  the  trust  that  such  action  should  be  brought,  he 
might  if  the  heirs  or  devisees  refused  to  join  as  plaintiffs, 
mace  them  defen  lants,  under  section  382. ^ 

In  construing  these  provisi(m3  it  has  been  held  that  an  exec- 
utor or  administrator  can  maintain  an  action,  without  joining 
his  beneficiary,  for  the  wrongful  conversion  or  embez-^lerm-nt  of 
the  properly  of  his  intestate  ;^  or  an  action  of  replevin ;'  or  for 

iPrtckerv.  WiHson,  15  Wend.  843.  *  But  see   Curtis  v.  Sutter,   15  Gal. 

«  Junis  V.  S.mer,  15  Cal.  259;  Hal-  259. 

Ipck    V.    M\xv.v,    16  1(1.  579;     Tesch-  «  Jahns  v.    Nolting,    29    C.tl.    507; 

machpr  V. Thompson,  18  Id. 'JO.  Beckman  v.  ^IcKaj',   14  Id.  250,    re- 

*  Hob.irt  C(<llc<re,  Trustees  of,  v.  Ipired  to  in  .lahns  v.  Noliiwg,  29  Id. 
Fitzliuiih,  27  N.  Y.  130.  612;  Sheldon  v   Hoy,  11  H..w.  Pr.  11. 

♦  OMlif.TMiH  Code  of  Civil    Proce-  »  Halleck  v.  Mixer,  16  Cal .  676. 
dure,  sec.  lob  J. 


72  GENERAL  PRINCIPLES.  §   141. 

trespass  to  the  real  property  of  the  testator,^  or  to  foreclose  a 
mortgage  \^  or  to  set  aside  deeds  fraudulently  made  by  the  de- 
ceased.^  So,  also,  an  administrator  may  maintain  an  action  on 
a  note  made  payable  to  him  as  adraiiiistrator.  But  in  Massa- 
chusetts an  administrator  of  the  deceasad  promisee  and  the  sur- 
viving promisee  of  a  proinissorj'  note  can  not  join  in  bringing 
an  action  on  the  note.^  Nor  can  an  administrator  de  bonis  non 
maintain  an  action  in  his  own  name  for  the  price  of  goods  of 
his  intestate,  sold  by  a  previous  administrator.^ 

On  a  demand  due  to  the  testator  before  his  decease,  the  ex- 
ecutor may  sue  either  in  his  individual  capacity,  or  in  his 
capacity  as  executor.'^  So  he  may  sue  as  administrator,  or  in 
his  own  right  upon  a  note  made  or  indorsed  to  him  as  admin- 
istrator ;S  and  in  an  action  for  conversi(m,  after  the  death  of  the 
intestate,  the  administrator  may  sue  in  liis  own  name  properly, 
though  the  conversion  took  place  before  the  gi-antiiig  of  the 
letters  of  administration,  as  the  letters  relate  back  to  the  time  of 
the  death,  and  give  title  by  relation.^  And  it  has  been  held  in 
New  York  that  an  executor  may  sue  In  two  different  capacities, 
as  executor  and  devisee,  where  the  causes  of  action  are  such  as 
may  be  joined.^** 

A  foreign  executor  or  administrator  can  not  sue  in  another 
state  in  his  representative  capacity.  His  authority  does  not 
extend  beyond  the  jurisdiction  of  the  government  under  which 
he  was  invested  with  his  authority.^^  The  objection  that  a  for- 
eign administrator  can  not  sue  must  be  taken  by  demurrer. ^^ 

But  the  assignee  of  the  thing  in  action  transferred  by  such 
foreign  executor  or  administrator,  may  sue  the  debtor  r.  sida  it 
in  another  state.  The  disability  of  the  representative  is  per- 
sonal and  does  not  affect  the  subject  of  ttie  action ;  and  in  the 
application  of  this  rule,  executors  or  administratoi's  made  or 
appointed  under  the  laws  of  an^  other  state  in  the  Union  are 
regarded  as  foreign. ^^ 

1  Haight V.Green,  19 Cal.n 3;  Rock-  »  Merritt  v.    Seaman,   6  N.   Y.  (2 

well  V.  8aunders,  1ft  Barb.  478.  Seld.)  If38. 

»  Harwood  v..Marye,  8  Cal.  580.  *  lii-is^jht  v.  Ciirrie.  5  Sniidl.  433. 

»Ual.  Code  Civil   Proc.  sec.  1589.  »  Sheldon  v.  lloy,  11  How.  (N.  Y.) 

Butsee  <Jon)!ra,  Snvder  V.  Voorhies,  2  11. 

West  Coast,  Rep.  6l 6.  "  Armstrons:  v.  H  ill,  17  H.)W.   Pr. 

♦Corcoran  V,    Doll,    32   Cal,    82;  76.     Compare  Pu^^slvv.  Aiken,  11  N. 

Copper  V.   Kerr,  3  Johns.   Cas.   fiOi;  Y.  404. 

Eagle  V.  Fox.  28  Bsirb.  473;    R.bin-  "  Cal.  Code  C.  P.,  sec   1913. 

son  V.  Craiidall,  9  Wend.  425;   Bright  "  Robbins  v.  Wells.  18  Abb.  (N.  Y.) 

T.  Currie,   5  Sandf.   433;  MerriU  v.  191;  S.  C,   Id.,  2tj   How   15;  Id.,   1 

;Seamen.  2  Seld.  KiS.  Roh.  m<o. 

'  Smith  V.  Franklin,  1  Mass.  480.  i'  P.-terson   v.    Chemical  Bunk,   32 

•  Gaidar  v.Pyfer,  2  Craach  COu  430.  N.  Y.  (5  Titf.)  21 . 


§    143.  ACTIONS  FOUNDED  ON  CONTRACT.  73 

§  142.  Actions  by  Partners. — It  was  the  rule  of  the  com- 
mon law,  and  the  same  has  remained  unclmnged  by  the  code, 
that  in  actions  for  the  benefit  of  the  partnership,  all  the  part- 
ners must  be  joined  as  parties  to  the  actions.  Thus  all  the 
partners  should  join  in  an  action  for  the  collection  of  a  part- 
nership debt,  as  for  the  recovery  of  the  price  of  goods  sold  by 
the  firm.  It  cannot  be  maintained  in  the  n:ima  of  one, 
although  he  is  the  general  agent  of  tlie  ficm.^  The  same  rule 
prevails  in  an  action  to  recover  against  an  inn-keeper  for  the 
loss  of  goo  Is  ;^  or  in  an  action  for  damages  for  a  deceit  in  the 
purchase  of  real  estate  for  partnership  purposes. ^  Wliether  a 
dormant  o;*  special  partnar  is  a  necessary  party  plaint  £f,  is  a 
question  of  practice  which  has  been  answered  diff^Tently  in 
different  states.  Many  of  the  states  have  enacted  statutes 
which  dispense  with  ihe  joinder  of  either  the  dormant  or 
special  partner.^  In  New  York,  however,  it  would  seem  that  a 
dormant  partner  is  a  necessary  paity  plaintiff  ^  But  when 
one  partner  is  a  member  of  two  firms,  one  of  which  sues  the 
other,  he  may  elect  to  be  either  plainli£f  or  defendant.^  An 
agreement  to  divide  the  gross  earnings  of  a  venture  does  not 
necessarily  constitute  the  parties  to  it  partners  '  Wuere  one  of 
the  partners  has  died,  the  rule  under  the  code  and  at  the  common 
law  was  that  the  right  remained  in  the  surviving  partners  to  sue 
on  the  fli'm  demands,  without  joining  the  personal  representatives 
of  the  deceased  partner.  Tlie  surviving  partners  miglit  a  sign 
the  firm  demands,  even  to  the  representatives  of  the  deceased,  in 
which  case  the  assignee  would  be  the  proper  party  plaintiff.^ 

§  143.  Foreclosure  of  Mortgages  and  Mec-iaaics'  Liens. 
In  actions  to  foreclose  mortgages,  all  persons  interested  in  the 
estate  may  be  made  parties.  But  no  person  holding  an  unre- 
corled  mortgage,  conveyance  or  lien,  from  or  un  ler  the  mort- 
gagor at  the  commencement  of  the  action,  need  be  made  a  party 
to  an  action  to  foreclose  a  mortgage  or  lien.^     Material  men  and 


e>    o 


1  Hyde    v.    Van    Vilkenbnrwh,     1  *  Sooor  v.  K"ller,  4  Duer.  41  >;  hut 

Da'v.  416;  Bridije  V,  Pavson,  5Sandf.  s^e   Hurlbut    v.     P'^^U    1    B  sw    28; 

210";  Miyliew    v.  Robinson,  10    H  -w.  B'own  v.  Birdsfill,  2!>  Bir  ..  649;  Van 

Pr.  162;    Brig,'3   v.    Briirs?*   20    Barb.  Valen  t.  linss.'ll,  18  11.  5  »0, 

477;  M.,  15  N.  Y.  471  ;Sw.'et  v  B-ad-  «  Cole  v.  Reynolds.  18  N.  Y  76. 

lev.  24   Barb.   5t0;  Hal  I  i  day  v.  Dog-  ^  Wheeler    v.   P  inn  t.    Cal.    Sup. 

gelt.  6  Pi(!lc.  359.  Ct.,   Julv  terra.   18.9.  citiii;    Paiter- 

2N'-e<lle3     v.    Howard,    1     E.    D.  son  v.  Blanchard.  1    6-11    IS  t;    Story 

Smiih.  54.  on    Part.,   sec.   84,    and  case*    there 

»  .Vl(fdtmry  v.  Watson,  6  Met.  246.  cited  in  note  8. 

« Clark   V.  Millor,   4    VV«nd.    629;  «  i^„yg    y.     Vila<».    18    Wi->.      169; 

Clark.son  v.  Carter.   3  Co\v.   84;    L-  Brown  v.  Allen.  85  lowi.  3')  1,811. 

veck  V.  Shiftop,  2  Esp.  4'>8;  Mitchell  •  CaiiforuiaCodeof  Civil  Procedure, 

v.  Doll,  2  Harr.  &  Gill.  171.  sec.  72(ji 


74  GENERAL  PRINCIPLES.  §    144. 

mechanics  may  join  in  an  equitable  action  to  establish  and  en- 
force their  liens. ^  The  morto^agee  of  a  policy  of  insurance  is 
the  owner,  and  can  alone  maintain  an  action  upon  it.*  But  the 
party  to  whom  tlie  loss  is  made  payable  in  the  policy  may  sue  ia 
his  own  name,  if  not  assigned,  so'd,  or  mortgaged. ^ 

§  144.  Principal  and  Agent. — On  contracts  made  by  an 
agent,  either  express  or  implied,  in  the  name  of  his  principal, 
the  latter  is  ttie  proper  party  pi  liniiff.  In  such  case  the  agent 
can  not  sue*  If,  however,  the  contract,  whether  verbal  or 
written,  is  entered  into  by  the  agent,  in  his  own  name,  without 
disclosing  his  principal,  either  the  principal  or  the  agent  may 
sue  thereon.  And  the  same  is  true  if  the  contract  is  entered 
into  by  the  agent  in  his  own  name,  and  the  fact  of  the  agency 
was  known  to  the  contracting  parties  at  the  time  of  the  making 
of  the  contract.*  Thus  an  agent  mny  maintdn  an  action  on  a 
promissory  note  payable  to  himself  as  agent.^  So  also  the  real 
owner  of  goods  may  maintain  an  action  concerning  them  in  his 
own  name,  and  parol  evidence  is  admissible  to  show  tlie  agency.' 

§  145.  Plaintiffs  in  Action  on  Promissory  Notes.— In 
actions  on  promissory  notes  the  real  party  in  interest,  that  is, 
the  party  having  the  right  to  the  money  thereon,  is  the  proper 
person  to  sue.^  The  holder  of  such  note  is  presumed  to  be  the 
owner,  in  the  absence  of  evidence  to  the  contrary,  and  prima 
facie  entitles  him  to  sue  thereon.^  The  fact  that  the  plaintiff 
has  not  the  actual  possession  of  the   note  sued  upon  does  nut 

J  Barbor  v.  R-iynolds,  .33  Cal.  497;  6  Iowa.  169;  XJsparicha  v.  Noble,  18 

Fitoh  V.  Creighton,  24  How.  159,  E  ist,   232;    Buftmu    v.   Cliailwick,    8 

*  Ripley  V.  Astor  Ins,  Co.,  17  How.  Mjhs.  10  J;  Fairfield  v.  Aijiiin-*,  Id 
Pr.  444;  Eiinis  v.  Harmony  Fire  Iiis.  Pick.  .3^1;  Morgan  v.  Reed.  7  Abb.  Ir. 
Co.,  3  liosw.  516;  but  see  Bidwf^ll  v.  215;  Van  Lien  v.  Bvrn.'s  1  Hilt.  1«3; 
N.  W.  Iiis.  Co.,  19  N.  Y.  179;  Budle  Ruiz  v.  Norton,  4  Cal.  35S;  Tliurn  v. 
V.  Clienango  Ins.  Co.,  2  Id.  53.  Alta  Tel,  Co.,  15  Id.  472;  Crosby  v. 

»  Frink  v.   Hampden  Ins.  Co.,  45  Walkins,  12  Id.  88. 

Barb.  884.  «  Ord  v.  McKee,  5  Cal.  515;  Conaid- 

*  Erickson  v,  Compton,  6  How.  Pr,  erantv.  Urisbane,  22  N.  Y.  3o9;  Reilly 
471 ;  Union  India  llubb'T  Co.  v.  Tom-  v.  (^onk,  22  How.  Pr.  98. 

lins(m,  1  E.  D.  Smith,  364;    St.  John  ^  Union  India  Rublx-r  Co.  v.  Tom- 

V.  Gritmh,   13  Huw.   Pr.  59;    Fish  v.  liiKon,  1  E.  D.  Smith,  :!(H. 

"Wood,  4  E.  D.  Smith.  327;  Hniglit  v.  «  Cummings  v.  M.-nis  3  Bo«w.  560; 

Stthler,   80    B-irb.    218;     Stanton    v.  Seld.-ii  v.  I'ringle,  17  15  ub. 4i'>0;  II  ,.st- 

Cump,  4  Id.  274;    Lane  v.  Columbus  ing-  v  .Mi-Ivinley,  1  E.  1).  Smith,  273. 

Ins.  Co  ,  2  C.  R.  65;  Lineker  v.  Aycsh-  ^  Luki't  v.  Davis.  3   MoLenn,   101 ; 

ford.  1  Cal.  75;   Phillips  v.  Henihaw,  IIiNli^d  v.  Lyon,  2  Id.  22);  Curtis  v. 

6  Id.  609.  Spnigue.   51    Cal.   289;     iAKCHiin    v. 

&  St.  John   V    Griffith.  2  Abb.   Pr.  L.-wis.  9  Id.  246;  cited  in  (^.rorati  v. 

198;  Hull  V.  Plaino,  14  Ohio  St.  417;  1)  II.  32  Id.  88;   Pri.e  v.  Dunhip,  5  Id. 

Higgins  V.   Senior.   8  M.  «&  W.  854  ;  4S3;  (luslieev,  Leaviit.  Id.  I'.O;  .Junes 

Sims  V.  Bond,  5  B.  «&  Ad.  389;  liasta-  v.  Cli  doners.  5  Sand.  52;    affirmed  in 

hie  V.  Poole,  1  C.  M.  &  R.  410;   Hk  ks  Lowber  v.  Lffoy.  2  S  Id.  20it;  Mott- 

V.  Whitmore,  12  Wend.  'MS;  Tainior  ram  v.  Mills,  1  Sand.  37;    VV  iltsie  v. 

V.   Prenderga-t,  8  Hill.  72;   TybT  v.  Nnrlham,  5  I5osw.  428;   Farriujiton  v. 

Freeman,  3  Cush.  261 ;  Frear  v.  Jones,  Park  Bunk,  89  Barb.  645. 


§   149.  ACTIONS  FOUNDED  ON  CONTRACT.  75 

affect  his  riglits  to  recover  upon  it,  if  he  be  the  real  owner,  al- 
though the  note  is  in  the  possession  of  the  defendant. ^  Con- 
versely the  mere  holder  of  a  n  te,  without  an  interest  in  or  title 
thereto,  cannot  maintain  an  action  thereon.^ 

A  party  holding  a  promissory  note,  as  trustee  for  himself  and 
others,  may  recover. ^  So,  a  bona  fide  indorsee  may  recover.* 
Or  the  indorsee  of  a  note  for  a  consideration  to  be  paid  after 
collection  may  maintain  action.* 

§  146.  Quo  Warranto. — Tlie  claimant  of  an  office  may  joia 
with  the  people  as  plaintiff  in  a  proceeding  of  quo  loarranto.^ 

§  147.  Action  by  Sheriff. —  A  sheriff  who  levies  an  attach- 
ment, by  virtue  of  the  process  of  attachment  can  not  maintain 
an  action  in  bis  OTrn  name  for  the  recovery  of  the  debt.' 

§  148.  Action  by  S^ate  Oi  Uaited  States. — Intheabsence 
of  any  statute  to  that  effect,  the  st  ite  can  not  be  sued.^  In  an  ac- 
tion to  annul  a  patent  for  land,  tlie  state  as  well  as  persons  having 
a  right  to  the  land  may  be  joined  as  plaintiffs.^  If  the  state  has 
no  interest  in  the  matter,  the  action  can  not  be  sustained.^"  Ac- 
tions for  the  recovery  of  an  auctioneer's  duty  are  properly  brought 
in  the  na  ue  of  the  state. ^  The  Uuited  States  of  America  can  sue 
in  that  name  in  chancery  without  putting  forward  any  public  offi- 
cer who  could  be  called  on  to  give  diseovery  on  a  cross-bill. ^^ 

§  149.  S  areties  as  Plaintiffs. —  A  surety  on  an  undertaking 
who  had  paid  the  amount  of  his  liability,  is  entitled  to  recover 
back  the  amount.^^  Co-sureties  who  pay  the  debt  of  their  prin- 
cipal by  giving  their  joint  and  several  notes  therefor,  must  join 
in  a  suit  against  him  for  reimbursement.^^  A  surety  paying  a 
debt  for  wuich  several  per  ons  are  liable  in  distinct  proportions, 
as  principals,  must  proceed  by  a  several  action  against  each  upon 
an  implied  asaumpsit.^^ 

iSeldon  V.  Pringle,  17  Barb.  468;        «  Ppople  v.   Rvder,  12  N.  T.  433; 

Ha  liiiiTs  V.  MrKihlev,  1  E.  D.  Smith,  affirme.i,    2    Kern.    433;    People    v. 

273;   .M<Clu-kvv.  (ierhauser,  2  Nev.  Walker,  23  Umb.  304. 
47;  Curtis  V.  S|)rH<;ue,  51  (.^hI.  239.  '  Sublette  v.    Melluido,    1   Cal.  105. 

2  Parker  v.  Toiien,  10  How.  Pp.  »  p^^^pi^  y.  Doe  G.  1034,  36  Cal.  220, 
233;    Clark    v.    Philips    21    Id.    87;         »  iVople  v.  .Morrill.  2«  Cal.  3'5«;  ap- 

Prall  V.  HilichinaM,  6  Duer,  351.  proved  in  VVil.-iori  v.  Castro,  81  Id,  427. 

»  Palmer  v.  Cii>..dwin,  5  C.il    458;         i"  People  v,  Stralton,  25  Cal.  244. 
Hamilton  v.    MiDuiiald,  18  Id.   123;         "Stale  v.  Poulter-r.   16  Cal.  614; 

Fletcher  v.  Derrickson,  3   Bosw.    181 ;  see  State  v.  Conkling,  19  Id.  609. 
but  see    Parker  v,   Totten,    10    Hovv.         ^^  United  Slates  ot  America  v.  Wag- 

Pr.  233;   White  v.  Brown,  14  Id.  282;  ner.  Law  R.-p.,  2  Ch.  App.  Cas.  682. 
Clark  V.  Pliillip?,  21  Id.  87,  13  (j^^r  v.  Martin,  1   Hilt.  358;  see 

*  Cummirigs  v.  Morris,  3  Bosw.  600;  Jewiit  v.  Crane,  13  Abb,  Pr.  97;  Id. 
Potter  V.  Cliadsev,  16  Abb.   Pr.  14(5;  35  B:irb.  20^. 

Himmelman  v.  Hotaling,  40  Cal.  111.  i*  Doolitlle  v.  Dwight,  2  Met.  561; 

*  Cummingi  V.  Morris,  25  N.  Y.  626.  see  Chandler  v.  Brainard,  14  Pick. 
As  to  iransferee  without  consiieration,  285;  Appleton  v.  Biiscom,  8  Met.  169 
see  K.illmore  v.  Culver,  24  Burb.  656.  **  Chipman  v.  Morrill,  20  CaU  180 


76  GENERAL  PUINCIPLES.  >?    1"0. 

CHAPTER  VII. 

PLAINTIFFS  IN  ACTIONS  ARISING  FROM  TORTR. 

§  150.  In  General. — Actions  in  form  ex  delicto  are  for  inju- 
ries to  the  absolute  or  relative  rights  of  persons,  or  to  personal 
or  real  property.  Tlie  proper  party  pltiintiff  in  such  action  is 
the  one  who  has  suffered  the  injury,  he  being  the  real  party  in 
interest.  Tliis  was  the  rule  at  commoa  law,  and  it  has  remained 
substanlinlly  unchanged  by  the  code.  The  prin  ipal  changes 
made  by  the  code,  and  by  statute  in  other  states,  in  respect  to 
this  class  of  actions,  are  those  relating  to  the  death  or  injury  to 
the  person  of  adults  or  minors,  caused  by  the  wrongful  aci  or 
neglect  of  another,  and  those  relating  to  seduction.  Tiie  code 
has  also  made  several  ira[)ortant  changes  in  regard  to  parties 
plaintiff  in  this  clasd  of  actions  by  permitting  assig  mt-nts  of 
certain  causes  of  actions  soun  liiig  in  tort.^ 

§  151.  For  Injuries  to  Real  Property. — An  injury  to  real 
property  is  primai-ily  an  injury  to  the  possession,  for  which  the 
party  in  possession,  unless  he  hold  for  another  as  servant  or 
agent,  shouM  bring  the  action.  Where,  however,  the  injury  is 
oi  a  permanent  character,  and  one  affecting  the  inheritance,  the 
remainderman  or  reversioner  may  maintain  an  action,  either  for 
trespass  on  the  case,  or  to  enjoin  the  further  continuance  of  the 
wrongful  act.2  Tiius  the  equitable  owner,  in  possession,  may 
maintain  an  action  for  damage  to  the  freehold. ^  Or  he  may  sue 
for  trespass.'*  On  the  same  priiici[)le,  the  owner,  redeeming 
from  a  sale  under  execution,  may  sue  for  waste  intermi-diate 
between  the  sale  and  his  redemption  ^  So  also  an  action  can  be 
maintained  by  tiie  mortgagee  of  real  estate  to  recover  damages 
for  wro'igful  and  fraudulent  injuries  done  to  the  mortgaged 
property,  by  wliich  the  security  of  the  mortgage  has  been  im- 
paired.^ But  several  parties  can  not,  in  a  joint  action,  recover 
damage  for  the  use  and  occupation  of  two  or  more  tracts  of 
land  which  tliey  own  in  severalty.''' 

§  152.  For  Injuries  to  Personal  Property. — In  actions 
for  injuries  to  personal  property,  or  for  its  conversion,  the  proper 

*  See/)o.?/,  Forms  of  Complaint:  As-  *  Hou«ee  v.  Hi'nrnonfl.  30  Birb.  89; 

Bigiiees  Hill  ')inii«(>s.  Siitfonl    V.    Hvnds.  M,  H'i);   PiiTce   v. 

U   Ch.    P.  (52.  153;    Van     Dtioson  Hail,  41  II.  142;   Sparks  v.  Loavy,  19 

V.  Youiiij;.    2t    liarh,  9;     Ijamp  >ri  v.  A^1l).  l*r.  3ti4. 

Atibott.  12    How.    Pr.  3i0;    Ulrich  v.  *  I'homas  v.  Crofut,  4  Korn.  t74. 

McCube,  1  Hilt. -251.  «  R,)l)ins<)n  v.  IliHsell.    2t   Cal.  472. 

'  Rood  V.  N.  Y.  etc.  R.  R.,  18  Barb.  '  Teuiiant  v.  Ptisler,  51  Oal.  511. 
80. 


§  154.  ACTIONS  ARISING  FROM  TORTS.  77 

party  plaintiff  is  generally  the  one  having  the  right  to  the  im- 
mediate possession,  although  in  proper  cases  the  general  owner, 
whose  reversionary  interest  has  been  injured,  may  sue.^  If 
there  are  two  or  more  joint  owners  of  the  property  injured, 
they  siiould  all  join.^ 

§  153.  la  Ejectment. — ^At  the  common  law,  tenants  in 
com  mm  could  not  join  in  an  action  of  ejectment  under  a  joint 
deniise  to  tlie  normal  plaintiff,  although  the  rule  was  different 
as  to  the  joinder  of  joint  tenants  and  coparceners. ^  Under  the 
codes  which  provide  that  "  all  persons  having  an  interest  in 
the  subject  of  the  action,  and  in  obtaining  the  relief  demanded, 
may  be  joined  as  plaintiffs,"  such  joinder  is  permitted  ^  Except 
in  Califomia,  Missouri,  and  Neva  la,  a  joinder  of  tenants  in 
common  less  than  all  is  not  permitted.  They  must  all  sue,  or 
eac'i  one  separately.*  In  the  stat-s  named,  however,  a  joinder 
of  less  than  all  is  permitted.^  Actions  of  ejectment  must  be 
prosi'cuted  in  the  name  of  the  real  party  in  interest,'  and  the 
person  having  the  legal  title  to  the  land,  and  not  the  one  having 
the  e(]uital)le  title,  is  such  party.^  And  to  entitle  him  to  sue 
he  must  be  out  of  possession.^  In  California,  the  heir  may 
maintain  ejectment  when  there  is  no  administration.^"*  The  rule 
that  eacli  of  several  heirs  may  sue  in  ejectment  for  payment  of 
rent  with  )Ut  joining  the  others,  applies  to  the  case  of  tenants  in 
common  of  an  incorporeal  hereditament  of  rents  charged  in  fee, 
and  no  reversion;  the  rents  are  apportioned  in  either  cnse.^^ 
The  grantee  may  bring  an  action  to  recover  Imds  conveyed 
while  in  adverse  possession,  in  the  name  of  the  grantor.^'-* 

§  154.  For  Injuries  to  the  Person. — Injuries  to  the  per^ 
son,  although  inflicted  by  the  same  act  and  by  the  same  de- 
fendants, generally  are  several,  and  each  person  injured  should 

»  1  Ch.  PI.   61 ;   Paddon    v.    Will-        *  Woolfork  v.  Ashby,  2  Mete  (Ky.) 

iams,  2  Abb.  Pr.  (N.  S.)  88 ;  Triscoiiy  288. 

V.  Orr.  49  Ual.  (512;  Harrison  v.  Mar-        *  Cruger  v.  McLaury.  41  N.  Y.  219; 

shall,  4  E.  D.  Smith,  271 ;    VVigsjins  v.  Hasbrouck  v.  Bunco,  62  Id.  479. 
McDonald,  18  Gal.   126;  Summers  v.        «  Wag.  Stat.  558,  sec.  3;  Cal.  Code 

Farisih,  10  Id.   347;   affirm'^d   in   Pra-  Civ.  Proc.    384;  Comp.  Laws    Nev., 

derv.  Purkett,  13   Id.  591;Drowner  1873,  sec.  1077;  Morenhaut  v.  Wilson, 

V.    Davis,    15    Id.    11;    McGinn     v.  52  Cal.  269. 

Worden,  3  E.  D.  Smith,  3'>5;  Hull  v.         ^  Ritchie  v.  D  )rland,  6  Cal.  33. 
Robinson,  2   Corast.   293;  Kellogg  v.        *  Emeric  v.  Pcnniinan,  26  C.il.  122; 

Church,   3   0.   R.  53;  Cass   v.   N.  Y.  O'Connell  v.Doughertv,  32  Id.  462. 
and  N.  H.  R.   R  Co.,  1    E.  D.  Smith.         »  Tavlor  v.  Crane,  15  H  .w.  Pr.  358. 
522;  Robinson  v.  Weeks,  1  C.  R.  (!f.        "  UpdegraflF  v.  Tra-«k  18  Cal.  468; 

S.)  311;  Van  Hassel V.Borden,  1  HilU  Estate   of    Woodworth,   31   Id.  604; 

128.  Soto  V.  Kroder,  19  Id.  87. 

«  Dubois  V.  Glaub.  52  Pa.  St.  238;        "  Cruger  v.  McClaughry,  51  Barb. 

D'  Wolf  V.  Harris,  4  Mason,  515.  642. 

»  1  Oh.  PI.  65.  "  Lowber  v.  Kelly,  9  Bobw.  494, 


78  GENERAL  PRINCIPLES.  §   1^5. 

sue  alone.  This  rule  is  not  universal,  as  the  wrongful  act  may 
injure  two  or  more  persons  in  their  joint  relation,  in  which  case 
they  may  join.  Thus  in  action  for  libel  or  slander  against  a 
partnership  the  partners  may  join.^ 

§  155.  The  Same — Injuries  to  Married  Woman. — At 
the  common  law,  for  injuries  to  a  married  woman,  the  right  of 
action  was  in  tlie  husband,  although  in  certain  cases  the  wife 
must  join.  As  stated  by  Chitty,  the  rule  was  substantially 
this:  "If  the  cause  of  action  survive  to  the  wife,  she  must  be 
joined  as  plaintiff;  as  where  the  injury  was  before  marriage,  or, 
if  it  was  inflicted  after  marri.ige,  it  be  of  such  a  nature  as  to 
bring  personal  suffering  to  the  wife,  or  if  it  injures  her  person- 
ally ;  as  a  battery,  false  imprisonment,  or  slander  by  words 
actionable  per  se.'^  And  the  same  rule  prevailed  in  regard  to 
injuries  to  the  wife's  property.  If  the  cause  of  action  survived 
to  her,  she  should  join,  otherwise  not.^  The  code  has  made 
sweeping  changes  in  regard  to  the  common-law  rules  concern- 
ing the  joinder  of  husbaml  and  wife.  In  California  the  code 
provides  that  "when  a  married  woman  is  a  party,  her  husband 
must  be  joined  with  her,  except — 1.  When  the  action  concerns 
her  separate  property,  or  her  right  or  claim  to  the  homestead 
property,  she  may  sue  alone ;  2.  When  the  action  is  between 
herself  and  her  husband  she  may  sue  or  be  sued  alone ;  3. 
When  she  is  living  separate  and  apart  from  her  husband,  by 
reason  of  his  desertion  of  her,  or  by  agreement  in  writing  en- 
tered into  between  them,  she  may  sue  or  be  sued  alone."  *     In 

11  Ch.  PI.  64;  Forster  v.  Lawson,  as  section  3G9  of  the  California  code, 

11  M<)ore.  3t)0;  Cook  v.  Batchellor,  3  exctipt  that  the  thinl  subdivision   is 

Bos.  &  Pul.   150;  Maitlaiid  v.  G-old-  omitted,  and  the  clause  "and  in   no 

ney,  2  E  ist,    42  i;    sfie   also    nolo   to  case  need  she  pro-iecute  or  delend  by 

Corrytoii  v.  LiLhebya,  2  Win.  Saund.  a  tjnardian  or  next  friend,"  is  added. 

861.  Ohio  code,  section  28,  is  as  follows: 

*  1  Ch,  PI.  7-3,  and  note  3;  Bliss  on  "  Where  a  raairicd  woman  is  a  party, 
Code  PI.,  sec.  27.  her  husband  must  be  joined  with  her, 

'  1  Ch.  PI.  75.  exi'ept   that    where    the   action   con- 

*  Cal.  Code  Civ.  Proc,  sec.  369.  cerns  her  separate  propt^rtj',  or  is  be- 
Simihir  statutes  have  been  passed  in  tween  herself  and  husband,  she  may 
all  the  code  states.  Such  statutes  sue  or  be  sued  alone;  and  in  every 
differ  somewhat  in  their  details,  but  such  case  her  separate  pro[)erty  shall 
their  s^eneral  results  are  suhotanlially  be  liable  for  any  judgment  rendered 
the  same;  Comp.  Laws  Nev..  sec.  therein  against  her  to  the  same  ex- 
1070;  lii'V.  and  Comp.  Laws  of  Idaho,  tent  as  would  the  properly  of  her 
sec.  7.  In  Iowa  a  married  woman  husband  were  the  judgment  rendered 
may  in  all  cases  sue  and  be  sued,  against  him ;  but  in  no  case  shall  she 
witnout  joining  her  husband  with  be  required  to  prosecute  or  defend  by 
her,  to  the  samo  extent  as  if  she  were  her  nt-xt  friend."  Formerly  the  code 
unmarried,  and  an  attachment  or  of  New  York  (section  IH)  was  the 
judgment  shall  be  enforced  by  or  same  as  the  above  section  of  the  Ohio 
against  her  as  if  she  were  a  sinirle  code,  omitting  the  clause  in  regard  to 
woman :  Code  of  Iowa,  sec.  2562.  The  the  liability  of  her  separate  property; 
Oregon  code,  section  80,  is  the  same  but  the  new  code,  passed    Juue  2, 


§   155.  ACTIONS  ARISING  FROM  TORTS.  79 

construing  these  provisions  of  the  code,  it  has  been  held  that 
in  actions  for  injuries  to  the  wife's  person  or  character,  slie 
must  join  with  her  husband  ;i  while,  for  injuries  to  her  sepa- 
rate estate,  whether  the  same  arise  from  deceit,  trespass,  or  con- 
version, she  may  sue  alone,  or  her  husband  may  be  joined  with 
her,  as  the  provision  authorizing  her  to  sue  alone  has  generally 
been  held  permissive,  except  in  those  states  which  absolutely 
require  the  action  to  be  prosecuted  by  the  wife  alone.^  So  also 
if  the  cause  of  action  arises  from  contract  the  wife  may  sue 
alone  if  it  concerns  her  separate  estate,  or  her  husband  may 
join  with  her  in  such  action. 

There  is  no  statutory  limitation  as  to  the  kind  of  actions 
that  may  be  maintained  by  the  wife  when  they  concern  her 
separate  propei-ty,  or  are  against  her  husband.  Thus  a  married 
woman  may  sue  alone  on  a  promissory  note  forming  a  part  of 
her  separate  estate,^  altlioagh  such  note  was  given  to  her  by 
her  husband  before  marriage,  and  he  is  the  party  sought  to  be 
held  liable  in  the  action.'*  Nor  is  it  necessary,  under  this  sec- 
tion, for  the  wife  to  sue  by  &  procheia  ami.^  In  New  York  a 
married  woman,  it  seems,  can  not  sue  her  husband  for  assault 
and  battery;^  nor  for  libel  or  slander;'  nor  in  ejectment.^  But 
she  may  sue  him  for  alimony,  without  bringing  an  action  for 
divorce.^  In  California,  the  possession  of  either  of  the  spouses 
as  to  the  community  property  is  the  possession  of  the  other, 

1876,   has    the    following    provision,  but  the  right  of  action  continued  in 

Bectioii450:  "  In  an  aciior.  or  special  the  wife,  wh(^re  it  was  before.    But 

proceediriir,  a  married  woman  appears,  supposing  the  interest  in  the  action 

prosecute!',  or  defends,  alone  or  jdiiK'd  terminated  as  to  tlie  hu-sband   upon 

with    other    parties,    as    if   she    was  the  entry  of  the  judi^inent  for  divorce, 

single."     Miniiesotn,  Kansas',  and  Ne-  there  was  still  the  same  cause  of  ac- 

bra^ka    have    provisions    similar    to  tion   in   favor  of  the   wile,  the   real 

tho-ie  of  New  York  and  Iowa.  parly  in  interest,  which  she  was  en- 

1  I'omeroy's  Remedies,  sec.  237.  tilled  to  prosecute  in  her  own  name, 

•Palmer  v.   Davis,   28  N.   Y.  242;  without  joining  a  person  whom  she 

Newbery  v.  Garland,  31   Barb,    lil;  afterwards  married,  and  the  mo>t  that 

Ackley  V.  Tarbox,  31  N.  Y.  5'U;  Van  could    be  said   was    that    there    was 

Marcn  v.  .Johnson,  15  Cul.  808;  Kays  a  misjoinder  of  pirties  phiintitf  from 

V.  Phelxn,  19  Id.  128;  Calderwood  v.  that  lime  forward;    and  that  objec- 

Pyser,  31  Id.  33^;    Corcoran  v.  Doll,  tion,  not  having  been  taken  either  by 

82  Id.  90.     In  Calderwood  v.  Pyser,  demurrer  or  answer,  was  waive!." 

aupra,  it  was  held,  "that  an  action  'Corcoran    v.    Doll,    32    Cal.   82; 

■which  concerned  the  separate   prop-  Smart  v.  Comstock,  24  Barb.  411. 

ertv  of  the  wife,   and  in  which   the  *  VVilson  v.  Wilson,  3ti  Cal.  447. 

husband    and    wife   joined,   did    not  *  Kashaw  v.  Kashuw,  3  Cal.  312. 

abate   in   consequence  of  a  divorce;  •  Longendyke    v.   Longendyke,   44 

the  parties  survived  the  divorce,  and  Barb.  S^iS. 

the  cause  of  action  survived.     Tne  '  Freethy    y.    Preethy,    42     Barb, 

husband  was  joined,  not  because  he  641. 

owned  the  property,  but  because  of  *  Gould  v.  Gould,  29  How.  Pr.  441. 

his   relation    to    the  other  plaintitf.  •  Galland  v.  Galland,  88  Cal.  2t)5. 
His  relation  ceased  by  the  divorce, 


80  GENERAL  PEINCIPLES.  §   156. 

and  neither  can  sue  the  other  for  the  conversion  thereof.  *  The 
provision  of  the  section  authorizing  the  wife  to  be  sued  alone  when 
living  separate  and  apart  from  her  husband,  has  no  application  to 
a  mere  temporary  ai)sence  of  the  wife  from  her  husband.  There 
must  have  been  an  aband  )nment  on  the  part  of  the  husband  or 
wife,  or  a  separation  which  was  intended  to  be  final.* 

§  156.  For  Injuries  to  Minor  Child  or  Ser/ant. — B^th 
at  the  common  law  and  under  the  code,  the  master  may  recover 
damages  for  injuries  to  his  servant  or  minor  child.  The  gist  of 
the  cause  of  action  is  the  loss  of  the  service  of  the  servant  or 
child.  Under  the  code  it  is  provided  that  a  "  father,  or  in  case 
of  his  death  or  desertion  of  his  family,  the  mother,  may  main- 
tain an  action  for  the  death  or  injury  of  a  minor  child,  and  a 
guardian  for  the  death  or  injury  of  his  ward,  when  such  death 
or  injury  is  caused  by  the  wrongful  act  or  neglect  of  another. 
Such  action  may  be  maintained  against  the  person  causing  the 
injury  or  death,  or  if  such  person  be  employed  by  another  per- 
son, who  is  responsible  for  his  conduct,  also  against  such  other 
person. "3  Under  this  section  the  minor  may  sue  by  his  guard- 
ian and  recover  for  the  injuries  he  has  sustained;  or  the  parent 
may  sue  and  recover  for  the  damages  sustained  by  him.  If  the 
minor  sue,  he  can  not  recover  for  the  special  damages  sustained 
by  the  parent;  and  the  parent  may  bring  and  sustain  his  action 
for  such  special  damages,  notwithstanding  the  recovery  by  the 
child.  If  the  child  do  not  sue,  the  parent  can  not,  in  the  same 
action,  recover  his  special  damages,  and  also  the  dim  ages  which 
the  child  might  recover,  if  he  brought  suit  by  his  guardian,  the 
action,  when  brought  by  the  parent,  being  one  of  that  class 
which  is  permitted  to  be  brought  without  joining  the  person  for 
whose  benefit  it  is  brought,  and  unless  the  action,  when  brought 
by  the  parent,  is  to  be  regarded  as  for  the  benefit  of  the  minor, 
there  would  seem  to  be  no  obstacle  in  recovering  in  an  action 
brought  by  the  child.  In  actions  for  injuries  resulting  in  death, 
the  measure  of  damages  is  left  to  the  sound  discretion  of  the 
jury. 

§  157.  For  Seduction. — The  codes  have  made  great  changes, 
in  some  of  the  states  in  the  rules  of  the  common  law  in  regard 
to  the  liabilities  for  seduction.  Section  374  of  the  California 
code  provides  that  "an  unmarried  female  may  prosecute,  as 
plaintiff,   an  action  for  her  own  seduction,  and  may   recover 

'  Seliulerv.  Savings  And  Loan  Soc,  'California  Code  Civil  Proc,  sec. 
1  Wost  Coast  Hop.  525.  876. 

s  Tubin  v.  Galvin,  49  Cal.  86. 


§   157.  ACTIONS  ARISING  PROM  TORTS.  81 

therein  such  damages,  pecuniary  and  exemplary,  as  are  assessed 
in  her  favor."  Section  375  provides  that  "  a  father,  or  in  case 
of  his  death  or  desertion  of  his  family,  ihe  mother,  may  prose- 
cute as  plaintiff  for  the  seduction  of  the  daughter,  and  the 
guardian  for  the  seduction  of  the  ward,  tliough  the  daughter  or 
ward  be  not  living  with  or  in  the  service  of  the  plaintiff  at  the 
time  of  the  seduction  or  afterwards,  and  there  be  no  loss  of 
service."  Neither  of  these  sections  imi>ose3  any  restrictions 
upon  the  right  to  maintain  the  action.  The  unmarried  female, 
whatever  her  age,  whether  living  with  her  father  or  guardian, 
or  not,  may  maintain  the  action.  Nor  does  the  right  of  the 
father  or  guardian  depend  upon  the  question  whether  the  female 
is  living  with  or  in  the  service  of  the  father  or  guardian.  Some 
questions  as  to  the  measure  of  damages,  and  the  right  to  main- 
tain several  actions  for  the  same  seduction,  arise  which  are  not 
free  from  diffljulties.  If  the  female  who  has  been  seduced  be 
at  the  time  a  minor,  and  living  with  her  father,  the  loss  of  serv- 
ice accrues  to  him.  Can  she  recover  for  that?  May  she  main- 
tain the  action  and  recover  all  other  damages,  and  her  father 
maintain  a  separate  action  and  recover  for  the  loss  of  services? 
If  so,  can  he  recover  anything  more  unless  he  has  incurred  ex- 
penses directly  caused  by  the  seduction?  If  the  seduction 
occurs  after  she  has  attained  her  majority,  can  the  father  main- 
tain any  action  therefor?  If  he  can,  does  the  recovery  go  for 
his  benefit,  or  only  for  the  daughter's?  Would  a  recovery  by 
him  bar  an  action  brought  by  the  daughter?  Or  a  recovery  by 
the  daughter  bar  an  action  brought  by  the  father  ?  Section  3339 
of  the  civil  code  declares,  "  the  damages  for  seduction  rest  in 
the  sound  discretion  of  the  jury."  Section  49  of  the  civil  code 
provides,  "the  rights  of  personal  relation  forbid:  3.  The  seduc- 
tion of  a  wife,  daughter,  orphan  sister,  or  servant."  The 
rule  in  relation  to  actions  for  torts  is,  that  "the  person  who 
sustains  an  injury  is  the  person  to  bring  an  action  for  the  injury 
against  the  wrong-doer."^ 

Under  the  penal  code  of  California  seduction  is  a  felony.  At 
common  law  no  action  could  be  sustained  for  damages  in  cases 
where  the  wrong  amounted  to  a  felony.  These  provisions  o^ 
the  code  of  civil  procedure,  however,  give  the  right  to  maintain 
the  action,  but  whether  the  common-law  rule  that  an  action 
based  upon  a  tort  can  not  be  maintained  by  any  one  who  has 
not  suffered  legal  damages,  is  changed  by  these  provisions,  is 
not  free  from  difficulty. 

1  Dicey  on  Parties,  380. 
ESTEB,  Vot.  I— 6 


82  GENERAL  PRINCIPLES.  §   157. 

It  is  true  that  formerly  the  woman  who  was  seduced  could 
not  maintain  the  action,  having  (on  the  ground  volenti  non  Jit 
injuri)  suffered  no  legal  wrong ;  and  the  person  who  can  bring 
an  action  is  the  parent  or  master,  who  sues,  in  theory,  at  least, 
for  the  wrong  to  him,  viz. :  the  loss  of  service.  The  action, 
therefore,  could  be  brought  by  any  one  who  stood  in  the  relation 
of  master  to  the  woman  seduced,  whether  he  were  merely  the 
master,  or  the  parent,  brother,  or  other  near  relative  of  the 
woman.  Nor  was  it  any  objection  that  the  woman  was  of  age 
at  the  time  of  the  seduction ;  and  it  has  been  held,  in  a  case 
where  she  lived  with  her  father  and  acted  as  his  servant,  no 
objection  to  the  action  that  she  was  a  married  woman.^  But 
service  of  some  sort  was  held  to  be  absolutely  essential.  Where, 
therefore,  the  daughter  was  living  independently,  and  support- 
ing herself  and  the  family,  neither  the  parent  nor  any  one  else 
could  maintain  an  action  for  her  seduction. ^ 

Unler  section  375  of  the  California  code,  it  is  plain  that  the 
"service,"  which  was  formerly  essential,  is  dispensed  witli  as  a 
foundation  of  the  right  of  the  parent  to  sue ;  and  we  may,  there- 
fore, conclude  that  the  parent  has  the  right  now,  independently 
of  any  loss  of  services,  to  recover  to  the  same  extent  as  formerly. 
If  this  be  true,  it  would  follow  that  a  recovery  by  the  parent 
would  be  a  bar  to  an  action  brought  by  the  daughter;  and  that 
a  recovery  by  the  daughter  would  be  a  bar  to  an  action  brought 
by  the  parent  for  more  than  special  damages  (if  any  were  sus- 
tained) which  from  their  nature  could  not  have  beea  included 
in  the  former  recovery.  Section  34  of  the  Oregon  code  is  iden. 
tical  with  section  375  of  the  California  code,  but  section  35  of 
the  Oregon  code  restricts  the  right  of  an  unmarried  female  to 
sue  for  her  own  seduction  to  those  over  twenty -one  years  of  age ; 
and  further  provides  that  the  prosecution  of  an  action  to  judg- 
ment by  the  father,  mother,  or  guardian,  as  prescribed  in  sec- 
tion 34,  shall  be  a  bar  to  an  action  by  such  unmarried  female. 

1  Harper  v.  Luff  kin,  7  B.  &  C.  387. 

«  Manly  v.  Field,  29  L.  J.,  79  C.  P.,  7  C.  B.  U.  S.  98, 


§  159.       ACTIONS  ARISING  PROM  CONTRACTS,  BTO.  83 


CHAPTER  Vm. 

DEFENDANTS  IN  ACTIONS  ARISTNO  PROM  CONTRACTS,  TORTS, 
AND  IN  EQUITABLE  ACTIONS. 

§  158.  At  the  Cammoa  Law,  All  Persons  who  were 
Jointly  Liable  on  the  same  contract  or  obligation  must  be 
joined  in  an  action  tliereon.  In  determining  whether  such  lia- 
bility was  joint,  the  rule  was  that  "several  persons  contracting 
together  with  the  same  party  for  one  and  the  same  act  shall  be 
regarded  as  jointly,  and  not  individually  or  separately,  liable, 
in  the  absence  of  any  express  words  to  show  that  a  distinct  as 
well  as  entire  liability  was  intended  to  fasten  on  the  promisors."^ 
This  common-law  rule  has  been  changed  in  most  if  not  in  all 
of  the  states  which  have  aiopted  codes  of  procedure.  In  Cali- 
fornia, the  civil  code  provides  that  "when  all  the  parties  who 
unite  in  a  promise  receive  some  benefit  from  the  consideration, 
whether  past  or  present,  their  promise  is  presumed  to  be  joint 
and  several.^  In  regard  to  the  joinder  of  such  parties  the  code 
provides  that  any  person  may  be  made  a  defendant  who  has 
or  claims  an  interest  in  the  controversy  adverse  to  the  plaintiff, 
or  who  is  a  necessary  party  to  a  comp  ete  determination  or  set- 
tlement of  the  question  involved  therein.  And  in  an  action  to 
determine  the  title  or  right  of  possession  to  real  property  which, 
at  the  time  of  the  commencement  of  the  action,  is  in  the  possession 
of  a  tenant,  the  landlord  may  be  joined  as  a  party  defendant,"  ^ 
and  "  of  the  parties  to  tlie  action,  those  who  are  united  in  interest 
must  be  joined  as  plaintiffs  or  defendants ;  but  if  the  consent  of 
any  one  who  should  have  joined  as  plaintiff  can  not  be  obtained, 
he  may  be  made  a  defendant;"*  and  persons  severally  liable 
upon  the  same  obligation  or  instrument,  including  the  parties 
to  bills  of  exchange  anl  promissory  notes,  and  suret  es  on  the 
same  or  separate  instruments,  may  all  or  any  of  them  be  included 
in  the  same  action,  at  the  option  of  the  plaintiff." 

§  159.  Annulling  a  Pate  it  to  Land.— In  an  action  to  set 
aside  a  patent  to  land,  the  patentee  is  a  necessary  party  defend- 

'  1  Ch.  PI.  41.  Fee  27fi2 ;  Oregon,  sec.  40 ;  Idaho,  spc. 

^Civil  Code,  sec.  16-'>9.  13;  Nevjidn,  sec.  13;  Arizona,  sec.  13, 

'CHliforniH  Code  C.  P.,  sec.  879;  1  *  CHlifoniia  Code   C.    P.,    see.  382. 

Van  Sniitv.  PI.  Eq.  Pr.74;  N.  Y.  Code,  Similap  provisions  are  found  ia  the 

1877,  sec.  447;  1  Van  Santv.  P!.  1 19;  codes  of  other  states. 

hash's  Ohio  PL.  sec.  36 ;  Laws  of  Iowa, 


8*i  GENERAL  PRINCIPLES.  §   160. 

ant.     His  no;hts  can  not  be  determined  or  impaired  in  any  side 
sui'  between  third  parties.^ 

§  160.  Actiaas  agiiast  Asas^SDrs. — In  Massachusetts, 
assessors  are  jointly,  as  well  as  severally,  liable,  for  illegally  as- 
sessing and  collecting  a  tax.* 

§  161.  Por  BraasTi  of  C3titract;. — AU  persons  materially 
interested  in  the  subject-matter  of  the  suit  should  be  made 
parties,  eitlier  plaintiff  or  defendant. ^  But  in  an  action  for 
damages  for  breach  of  contract,  only  the  par  ties  to  the  contract 
should  be  joined  as  defendants.*  And  in  a  suit  to  enforce 
a  covenant  not  to  carry  on  a  certain  trade,  the  original  covenantor 
is  not  a  proper  party  if  he  hvs  parted  with  all  interest  and 
is  not  in  fault.^  It  is  held  in  Massachusetts  that  heirs  are 
jointly  chargeable,  as  assigns  on  a  covenant  of  their  ancestor 
which  runs  with  the  Ian  I  that  descends  to  them.'  So,  with 
guardians  severally  appointed  for  different  heirs,'''  In  New  York, 
persons  severally  liable  should  not  be  joined  in  the  same  action  as 
defendants.^ 

§  162.  Actions  against  Esecutors  and  Administrators. 
In  California  the  executor  and  adiniaistrator  of  a  decedent  is 
entitled  to  the  possession  of  the  entire  estate  of  the  deceased, 
both  real  and  personal.  The  code  provides  that  "  actions  for 
the  recovery  of  any  property,  real  or  porsonal,  or  for  the  pos- 
session thereof,  and  all  actions  founded  upon  contracts  may 
be  maintained  by  and  against  executors  and  administrators 
in  all  cases  in  which  the  same  might  have  been  maintained 
by  or  against  their  respective  testators  or  intestates."^  "Any 
person,  or  his  personal  representatives,  may  maintain  an  action 
against  the  executor  or  administrator  of  any  testator  or  in- 
testate who  in  his  life-time  has  wasted,  destroyed,  taken,  or 
carried  away,  or  converted  to  his  own  use,  the  goods  or  chat- 
tels of  any  such  person,  or  committed  any  trespass  on  the 
real  estate  of  such  person."^"  And  "  in  actions  for  or  against 
executors  or  administrators,  it  is  not  necessary  to  join  those 
as  parties  to  whom  letters  were  issued,  but  who  have  not 
qualified. "^^    The  code  also  contains  minute  provisions  requir- 

1  B')'^e;9v.  Mercftd  Mininsf  Company,  •  Morse  v.  Aldrich,  1  Mpt.  544. 
14{'ai.  279;    approved    in    Y>uiit   v.  '  Donohoe  v.  Kinery,  9  Met.  H3. 
H..W.-11.  14  Id.  4ij9;    Pioche  v.  Paul,  *  Le  R.>v   v.  Sliaw,    2   Duer,   626; 
22  1.1.  111.  Plial.'ii  V.  biiigee.  4  E.  D.  Smith.  879; 

2  Wiiliinajton  v.EvHftth,  7  Pick.  10??.     Spencer   v.    Wheelock,  11  N.  Y.  Leg. 
«  liiirloii  V.  Lies,  21  Cm1.87;  affirm.-d     01>s>.829. 

in  Car  >e  itier  v.   Wiiliatn-on,  25   Id.        "'JHlifornia  Code   Civ,  Proc,    sec. 

161 :    \,'i)s.>n  v.  Castro,  31  Id.  420.  1582. 

*  B  irber  v.  Cazalis,  «0  (%il.  92.  i»  Id.,  sec.  15«4. 

»  ClemenU  v.WoUes,  L.  K.,1  Eq.  200.       ^  Id.,  sec  lob7. 


§163.        ACTIONS  ARISING  FROM  CONTRACTS,  ETC.  85 

inw  a  creditor  of  a  deceased  to  present  his  claim  against  the 
estate  to  tlie  executor  or  administrator  of  the  deceased  for 
aUowjince  hefore  he  can  maintain  an  action  thereon. ^  In  con- 
struing these  provisions  of  the  code,  it  has  been  repeatedly  held 
that  the  general  riglit  to  sue  an  executor  or  administrator  was 
taken  away  by  statute,  except  in  cases  where  the  creditor's 
claim  has  been  properly  presented  and  rejected.^  If  an  execu- 
tor has  come  into  possession  of  the  trust  fund  or  its  substi- 
tute, so  that  the  same  can  be  identified,  he  can  be  held  to 
account  and  charged  as  trustee,  upon  the  same  terms  as  his 
testator  held  the  trust,  and  the  relation  of  trustee  and  cestui  que 
trust  is  added  to  that  of  executor.^  In  suit  for  specific  perform- 
ance of  testator's  contract  for  sale  of  lands,  the  executor  of  de- 
ceased should  join  as  plaintiff.*  In  an  action  for  specific  perform- 
ance against  heirs  on  their  ancestor's  contract,  where  damages 
are  demanded  in  the  alternative,  the  executors  or  administra- 
tors should  be  made  parties,  or  no  judgment  can  be  taken  for 
such  dam'iges.5  In  Nevada  a  joint  action  can  not  be  maintained 
against  the  survivor  and  the  administrator  of  a  deceased  maker 
of  a  promissory  note :  *  and  the  same  would  seem  to  be  the  rule 
in  California.  The  reason  assigned  for  this  rule  is  that  the  judg- 
ment against  the  survivor  would  have  to  be  de  bonis  propriis,  and 
against  the  executor  or  administrator   de  bonis  testatorisJ 

It  is  a  general  rule  of  law  that  no  action  will  lie  against  an 
executor  or  administrator  to  which  his  testator  or  intestate  was 
not  liable.^  The  estate,  represented  by  a  person  upon  wliom  the 
duty  of  keeping  the  prem'ses  in  repair  is  cast,  is  no  more  liable 
for  hisnoglect  of  that  personal  duty  than  it  would  be  for  a  fine 
which  might  be  imposed  upon  him  by  a  criminal  court  for  an 
assault  and  battery  committed  by  him  whde  in  possession  of 
such  estate.*  In  actions  for  the  foreclosure  of  a  mortgage, 
against  tiie  estate  of  a  deceased  mortgagor,  his  heirs  are  not 
necessary  parties.*" 

§  163.  Foreclosure  of  Mortgages  and  Mechanics' Liens. 
In  actions  to  foreclose  mortgages,  all  parties  who  own  or  have 

*  See  this  subject  discussed  under        •  Maples  v.  Geller,  1  Nev.  233. 
Forms  of  ComplHiiits:  Ac-tions  by  Ex-        ^Bstnkof  Stockton  v.  Uowiand,  42 
ecutors  and  Administrators.  Cal.  120, 

2  Elli-=en   v.   Halleck,   6    Cal.   893;  »  2  Williams  on  Executors,  p.  1478; 

Hentsch  v.  Porter,   10   Id.  559;  Eus-  Eustace  v.  Jalins,  38  Cal.  8. 

tace  V.  Jahns,  88  Id.  3.  »  Craton  v.  Wensij^er.  2  Tex.  202; 

»  Latlirop  V.  Bampton.  81  Cal.  17.  Able  v.  Chandler,  12  Id.  92;  Eustace 

*  Adams   v.    Gre.-n,  84   Barb.    176;  v.  . I  ah  ns.  38  Cal.  3. 

see  Cal.  Code  Civ.  Proc,  spp.  1582.  »«  Bailey  v.  Muehe,  I  West  Coast 

»  Massie'a  Heirs    v.    Doualdsoo,  8    Sep.  125, '2(53 ;  8  Id.  195. 
Ohio,  877. 


S6  GlfiNEllAL  I'KiNOlPLES.  §    163. 

an  estite  in  the  land  to  be  sold  under  the  decree,  and  those 
who,  either  originally  or  by  assigmnent,  aie  liable  on  the  mort- 
gage debt,  are  necessary  parties.  It  is  proper,  however,  to 
join  as  defendants  all  persons  materially  interested  in  the  sub. 
ject-matter  of  the  controversy.^  Thus  tlie  owner  of  the  equity 
of  redemption  is  a  nccessiiry  party  to  a  foreclosure  suit.^  And 
the  same  is  true  of  the  grantee  of  tlie  mortgagor.^  But  where 
the  payment  of  the  mortgage  debt  is  assumed  by  the  grantee, 
as  between  himself  and  the  mortgagor,  although  the  grantee  is 
a  necessary  party,  the  grantor  is  not.'*  In  New  York  and  other 
states  the  wife  of  the  mortgagor,  or  of  the  subsequent  grantee, 
is  a  necessary  party,  in  order  to  cut  off  her  equity  of  redemp- 
tion.^  An  assignee  in  bankrui)tC3'  of  the  mortgagor  is  a  neces- 
sary party,  and  if  not  joined  may  sue  to  redeem. ^  But  an 
assignment  in  bankruptcy  pending  suit  does  not  make  the 
assignee  a  necessarj-  partyJ 

If  a  mortgage  is  assigned  as  a  security,  the  assignor  is  a  neces- 
sary party. 8  So  the  assignor  of  a  mortgage  who  guarantees 
its  payment.^  Otherwise  if  there  is  no  express  cov^ant  to  pay, 
though  it  forms  part  of  the  purchase-money.^" 

In  a  foreclosure  of  mortgage  given  by  trustees  the  cestuis  que 
trust  are  necessary  parties. ^^  When  an  action  is  brought  to  fore- 
close a  mortgage  securing  the  payment  of  a  promissory  note, 
the  maker  and  indorser  of  the  note  may  be  joined  as  defend- 
ants.^^    A  writ  of  entry  to  foreclose   a  mortgage  may  be  main- 

1  Luning  v.  Brady,  lO  Cal.  265;  Van  Nest  v.  Latson,  19  Barb.  604; 
Monlgomery  V.  Tutt,  11  Id.  307;  Tv-  Stohbins  v.  Hall.  29  Id:  624;  Me- 
ier v.  Yreka  Water  Co.,  14  Id.  212;  Arthur  v.  Franklin,  16  Ohio  St.  485. 
DeLeonv.  Higuera,  15Id.  483;  Good-  »  Dnnton  v.  Nanny,  8  Barb.  618; 
enow  V.  Ewer,  16  Id.  461;  McDer-  Dexter  v.  Arnold.  1  Summ.  109;  Gor- 
mott  V.  Burke,  Id.  680;  Burton  v.  don  v.  Lewis,  2  Id.  143;  Wheeler  v. 
Li«9,  21  Id.  87;  Horn  v.  Jones,  28  Id.  Morris,  2  Bosw.  624;  Vartie  v.  Un- 
194;  Anthony  v.  Nye,  80  Id.  401;  derwood,  18  Barb.  661;  Mills  v.  Van 
Carpenter  v.  Brenham,  40  Id.  221 ;  Voorhips,  20  N.  Y.  412 ;  Blyde.nburg 
Braiiiard  v.  Cooper,  6  Seld.  356;  Peck  v.  Northrop,  13  How,  Pr.  289;  Brown- 
V.  Mrtllams,  Id.  609;  Walsh  v.  Rut-  son  v.  Gifford,  8  Id.  389;  Pinckney  v. 
gers  Fire  Ins.  Co.,  13  At)b.  Pr.  33;  Wallace,  1  Abb.  Pr.  82;  Lewis  v. 
Case  V.  Price,  17  How.  Pr.  848;  9  Smith,  11  Barb.  152;  Union  Bank  v. 
Abb.  Pr.  111.  Bell,  14  Ohio  SU200. 

2R"ed  V.  Marble,   10  Paisre,  409;  •  Winslow  v.  Clark,  47  N.  Y.  261. 

Dexter  V.  Arnold,  1  Sumn.  109;  Gor-  *  Cleveland  v.    Boerum,  24   N.   Y. 

don  V.  Lewis,   2  Id.  143;  Griswold  v.  613;  Daly  v.   Burchell,   13  Abb.  Pr., 

Fowler,  6  Abb.  Pr.  120 ;  N.  Y.  Life  Ins.  N.  S.,  264. 

and  Trust  Co.  v.  Bailev,  8  Edw.  Ch.  •  Kittle  v.  Van  Dyck,   1  Sand.   Ch. 

417;  Crooke  v.  O'Higgi'ns,  14  How.  Pr.  76. 

154;  see  Bank  of  Orleans  v.  Flaiju,  3  "  Bristol  t.  Morgan,  3  Edw.  Ch.  142. 

Barb.  Ch.  316 ;    Case  v.  Price,  9  Abb.  "  Lockwood  v.  Benedict,  8  Edw.  Ch. 

Pr.  113.  472. 

*  Skinner  V.  Buck,  29  CaL  258;  "  Piatt  v.  Oliver,  2  McLean,  S.  Ct 
Heyman  v.  Lowell,  23  Id.  106.  267. 

*  Drury  v.  Clark,  16  How.  Pr.  424;  ^  Eaatman  v.  Turman,  24  Oal.  882. 


§   164.        ACTIONS  ARISING  FROM  CONTRACTS,  ETC.  87 

tained  against  a  tenant  in  possession. ^  Where  infants  having  an 
equitable  vested  remainder  in  fee,  liable  to  be  defeated  by  their 
dying  in  the  life-time  of  the  equitable  tenant  for  life,  were  not 
made  parties,  they  are  not  bound  by  the  decree. ^  And  where 
there  are  several  future  and  confingent  interests,  the  person 
who  has  the  first  vested  estate  of  inheritance  and  all  other  per- 
sons having  prior  rights  oi;  interests  in  the  premises  must  be 
made  parties ;  though  every  person  having  a  future  or  contin- 
gent interest  is  not  a  necessary  party.  ^  In  such  suit,  where 
the  defendant  dies  after  the  commencement  of  suit,  the  admin- 
istrator becomes  a  necessary  party  in  a  petition  for  decree  of 
sale  of  mortgaged  premises,  if  it  is  sought  to  have  a  judgment 
over  against  the  estate  for  any  deficiency.'* 

In  general,  all  incumbrancers  prior  and  subsequent  are  proper 
parties  defendant,  and  should  be  joined  if  it  is  desired  to  secure 
a  judgment  binding  them.^  But  an  incumbrancer  who  becomes 
such  pending  suit  is  not  entitled  to  redeem,  and  therefore  need 
not  be  made  a  party. ^ 

But  in  California,  no  person  holding  a  conveyance  from  or 
under  the  mortgagor  of  the  property  mortgaged,  or  having  a 
lien  thereon,  which  conveyance  or  lien  does  not  appear  of  rec- 
ord in  the  proper  office  at  the  time  of  the  commencement  of 
the  action,  need  be  made  a  party  to  such  action ;  and  the  judg- 
ment therein  rendered  and  the  proceedings  thereiu  had  are  as 
conclusive  against  the  party  holding  such  unrecorded  convey- 
ance or  lien  as  if  he  had  been  made  a  party  to  the  action.' 
Suits  for  the  foreclosure  of  a  mechanic's  lien  are  in  many  re- 
spects analogous  to  those  in  ordinary  foreclosure.  All  parties 
necessary  to  enable  the  court  to  do  complete  justice  may  be 
joined.'' 

§  164.  Action  for  Fraud. — In  an  action  to  obtain  relief 
from  a  judgment  fraudulently  procured,  the  attorney  at  law 
charged  with  being  a  party  to  the  fraud  should  be  joined  with 
the  client.*     So  partners   may  be  jointly  sued   for  fraudulently 

1  Fales  V.  Gibbs,  5  Mason  C.  C.  4R2.  •  Cook  v.  Mancius,  5  Johns.  Ch.  89; 

'  Williamson  v.  Field,  2  Sand.  Ch.  Loomis  v.  Stuvvesant,  10  Paige  Ch. 

588.  490;  People's  Hank  v.  Hamilton  Mfg. 

3  Nodine    v.   Greenfield,    7     Paige  Co.,   10  Iil.  481  ;  see  Bishop  of  Win- 

Ch.  544.  Chester  v.  Pjiitie,  11  Ves.  VJi. 

*  Belloc  V.  Rogers,  9  Cal.  123;  see  '  Code  C.  P.,  sec.  726. 

Fallon  V.  Butler,  21  Id.  24.  «  SuUiviin  v.  Decker,.!  E.  D.  Smith, 

sFilney  v.  Bank  of  United  States,  699;    Lowher    v.  Childs*  2   Id.   677; 
11    Wheat.   S    Ct.    804;  Matcalm  v.  Foster  v.  Skidmore,  1  Id.  719;  Kay- 
Smith,  6    McLean    S.  Ct.  416;    Ens-  lor  v.  O'Connor,  Id.  672. 
■worth  V.  Lambert,  4  Johns.  Ch.  605;  *  Crane    v.    Hirschfelder,,  17    CaU 
Hainea  v.  Beach,  3  Id.  461.  467. 


«8  GENERAL  PRINCIPLES.  §   165. 

recommenfling  an  insolvent  person  as  worthy  of  credit.^  Or 
for  deceit  in  a  sale,  if  both  knowingly  make  fal^e  representa- 
tions, though  only  one  was  interested  in  the  expected  fruits  of 
the  fraud.*  So  in  an  action  to  set  aside  a  conveyance  as  made 
without  consideration  and  in  fraud  of  creditors,  the  fraudulent 
grantor  is  a  necessary  party  defendant.^ 

§  165.  In  Ejectment. — The  general  rule  is,  that  ejectment 
■can  be  maintained  only  against  the  real  party  in  possession, 
although  he  is  not  personally  on  the  premises,  but  may  be  in 
possession  through  servants  and  employes.*  A  mere  party,  in 
charge,  for  others,  is  not  an  occupant.^  A  railroad  company 
who  have  simply  laid  rails  on  a  public  highway  are  not  occu- 
pants.^ But  if  the  landlord  be  joined  with  the  tenant  as  de- 
fendant in  an  action  of  ejectment,  judgment,  if  for  the  plaintiff, 
must  be  against  both.'^ 

In  ejectment  against  mining  claims,  it  is  not  necessary  to  in- 
clude as  defendants  those  holding  other  undivided  interests.* 
But  a  landlord  may  come  in  and  defend  in  an  action  in  eject- 
ment, where  summons  is  served  on  a  tenant,  by  a  proper  show- 
ing, even  after  a  default  is  taken.  The  statute  should  in  such 
cases  be  construed  so  as  to  dispose  of  actions  of  this  character 
as  nearly  on  their  merits  as  possible,  and  without  unreasonable 
delay,  regarding  mere  technicalities  as  obstacles  to  be  avoivled.* 
A  landlord  may  defend  in  the  name  of  the  tenant,  but  not  in 
his  own  uame.^"  Persons  renting  different  apartments  in  the 
same  house  may  be  joined  as  defendants. ^^  And  the  same  is 
true  of  parties  claitning  title,  accompanied  by  acts  of  owner- 
ship, to  unoccupied  premises.^*  And  any  nurabor  may  be  made 
defendants,  subject  to  their  right  to  answer  separately. ^^ 

§  166.  Married  Woman, — In  California,  where  a  mar- 
ried  woman  is  a  party,  her  husband  must  be  joined  with  her, 

1  Patten  v.  Gurney,  17  Ma8<*.  182.  »  Roland  v.  Kreyenhacren,    18    Cal. 

»  SiilesJ  V.  White,  11  Met.  85i>.  455;  see  also  Kied  v.  CHidiTWOod,22Id. 

•  GnylorUs  V.  Kelshaw,  1  WalL  (U.  465;  Barrelt  v.  Graliain,  19  Id.  632 
S.)  81.  atBi-med  in  Bailey  v.  Tuafe,  29  Id.  424 

•  P. dark  V.  Mansfield.  44  Cal.  86;  "  Dimick  v.  Deriiia;Rr,  32  Cal.  488; 
see  also  ValiMitine  v.  MahoMcy.  37  Id.  see  also  Valentine  v.  Mahoney,  37  Id 
389,  where  the  question  !•*  discussi'd  393;  Husstnan  v.  \Vilk»>,  50  Id.  250 
as  to   the  applicability  of  sei-tiun  13  Garner  v.  Marshall,  9  Id.  270. 

of  the   praaice  act  (Godo   C  P.,  sec.  "  Paarce  v.  G.iden.  8  Birb.  522. 

379,     first    clause)    to  the  action  of  "  Garner  v.  Marshall,  9   Cal.  268; 

ejectment.  Taviorv.  Crane,  15  II<>w.  Pr.  358. 

»  Hawkins  V.  Reichert,2S  Cal.  534;  i»  Winans  v.    Chmlv.   4    Cal.    70; 

People   V.  Ainbrecht,    II    Ah.  Pr.  97.  Ritchie   v.  Dorland,    6  Id.  33;  Ellis  v. 

•  Kedfi'd  1  V.  Utica  &  Syracuse  li.  Jeans,  7  Id.  417;  Curtis  v.  Sutter,  15 
R.  Co..  25  Uarb.  54.  Id.  2(54;  Mari..n  v.  Foisj.-r,  Id.    276; 

»  CodeC.  P.,  sec.  879.  Leese  v.  Clark,  28  Id.  35:  Fosgate  v. 

•  Waring  v.  Crow,  1 1  Cal.  366.  Herkimer  etc.  Hyd.  Co.  12  Barb.  852. 


§  165.        ACTIONS  ARISING  FROM  CONTRACTS,  ETC.  89 

except :  1 .  When  the  action  concerns  her  separate  property,  or 
her  right  or  claim  to  the  homestead  property,  she  may  sue 
alone ;  2.  When  the  action  is  between  herself  and  her  hus- 
band, she  may  sue  or  be  sued  alone;  3.  When  she  is  living 
separate  and  apart  from  her  husband  by  reason  of  his  desertion 
of  her,  or  by  agreement  in  writing  entered  into  between  them 
she  may  sue  or  be  sued  alone.^  If  a  husband  and  wife  be  sued 
togetlier,  the  wife  may  defend  for  her  own  right,  and  if  the  hus- 
band neglect  to  defend,  she  may  defend  for  his  right  also.^ 

For  any  fraud  or  deceit  practiced  by  the  defen  laut,  whether 
the  injury  were  wrought  through  the  form  of  a  contract  or  not, 
affecting  the  common  property,  the  remedy  is  by  the  husband 
alone. 3  The  husband  of  a  married  woman  is  properly  joined 
with  her  as  a  party  defendant  in  an  action  upon  a  partnership 
obligation  contracted  by  the  wife  and  third  persons  as  partners 
previous  to  the  marriage  and  while  she  was  a  feme  sole.*  The 
wife  is  an  im|)roper  party  to  a  snit  brought  to  recover  money 
loaned  to  her  to  complete  the  amount  of  purchase  money  for  a 
lot  of  ground,  the  deed  of  which  was  executed  to  her,  but 
which  became  common  property,  and  which  purchase  was  after- 
wards ratified  by  the  husband.  There  could  be  no  personal 
judgment  against  the  wife.^  In  California,  the  wife  m;)}'  appear 
in  and  defend  an  action  separately  from  her  husband.^  Where 
the  defense  of  the  wife  is  a  special  one,  she  can  defend  for  her 
own  right  as  well  when  sued  jointly  as  if  the  trial  was  separate.' 
To  enable  her  to  defend  in  her  own  right,  she  must  possess  as 
defendant  the  rights  of  a  feme  sole.^     In  an  action  pertaining  to 

1  Code  C.  P..  sec.  370.  action  separately  from  her  husband; 

'  Code  C.    P..   sec.   371 ;    Laws  of  she  therefore  possesses,  as  defendant, 

Iowa,  sec   2774  ,*  Idaho,  sop.  8 ;  Ne-  all  the   rights  of  a  feme  sole,  and  is 

vada,  sec.  23;  N.  Y  Code,  1877.  sec.  8;  able  to  make  as  bindincr  admissions  in 

Ohio,  sec.  29;  N.  Y.  Code,  1877,  sec.  writing  as  other  parties:  Alderson  v. 

460.    As  to  what  is  separate  prop-  Bell,  9  Cal.  321.     The  statute  confers 

erty,  see  California  Civil  Code,  sees,  only  a  privilege   which  in  many   in- 

162,  163.    In  actions  brou^lit  under  stances  it  may  be  important  for  the 

subdivision  second  of  this  section,  the  wife  to  assert  for  the   protection  of 

test  is  simply  toascertain  if  the  suit  her  interests,  and  in  the  exercise    of 

is  between  her  and  her  husband ;  and  which  the  fullest  liberty  should   be 

this  being  found  in  the  affirmative,  accorded  to  her:  Van  Maren  v.  John- 

the   necessity   of  introducing    other  son.  15  Cal.  311. 

parties   can    not    affect    her    right:  •  Barrett  v.  Tewksbury,  18  Cal.  336. 

Kashaw  v.  Kashaw,  3  Cal.  321.     In  *  Keller  v.  Hicks,  22  Cal.  457. 

actions  brought  under  subdivision  3,  '  Althof  v.  Conheim,  38  Cal.  2-30. 

a  tomponiry  absence  does  not  rorae  'Alderson  v.  Bell,  9  Cal.  315;  ap- 

within  the  meaning  of  the  act.    There  proved  in  Leonard  v.  Townsend,   26 

must  have  been  an  abandonment  on  Id.  445. 

the  part  of  the  husband  or  wi'e,  or  a  '  Djuprez  v.  Deuprez,  5  Cal.  387. 

geparati'on  which  was  intended  to  be  ^  ^ifjepgo,,    y     HM,    9    Cal.    315; 

final :  Tobin  v.  Galvin,  49  Cal.  36.  37.  Leonard  v.  Townsend,  26  Id.  445. 
The  wife  can  appear  in  and  defend  an 


90  GENERAL  PRINCIPLES.  §   167. 

her  property  as  sole  trader  under  the  act  of  1852,  the  husband 
need  not  be  joined.^ 

The  husband  is  properly  joined  with  the  wife  in  an  action 
upon  an  obligation  contracted  by  the  wife  previous  to  maninge.' 
In  a  suit  to  foreclose  a  mortgage,  and  set  aside  a  fraudulent 
conveyance  of  property  by  the  husband  to  the  wife,  the  wife 
was  properly  joined  with  the  husband  as  a  defendant.^  And  in 
a  foreclosure  of  a  husband's  mortgage  for  the  purchase  money 
of  the  wife's  separate  estate,  both  must  be  joined.'*  So,  also, 
where  the  wife  executes  a  mortgage  with  her  husband. ^  So,  in 
partition  suits,  the  wife  must  be  joined  with  her  husband  as  de- 
fendant,^ In  forcible  entry  and  detainer,  also,  the  husband  is 
properly  joined  in  the  action.'  So,  also,  where  the  homestead 
is  involved,  the  wife  must  be  joined  as  defendant  in  certain 
cases. ^  For  the  torts  of  the  wife,  committed  out  of  the  presence 
of  the  husband,  the  latter  must  be  joined. ^ 

§  167.  Actions  by  Infants. — When  an  infant  is  a  party, 
he  must  appear  either  by  his  general  guardian,  or  by  a  guardian 
appointed  by  the  court  in  which  the  action  is  prosecuted,  or  by 
a  judge  thereof.  A  guardian  may  be  appointed  in  any  case, 
when  it  is  deemed  by  the  court  in  which  the  action  is  prose- 
cuted, or  by  a  judge  thereof,  expedient,  to  represent  the  infant 
in  tlie  action,  notwithstanding  he  may  have  a  general  guardian, 
and  may  have  appeared  by  him.^'^  When  the  infant  is  defendant, 
a  guardian  will  be  appointed  upon  the  application  of  the  infant, 
if  he  be  of  the  age  of  fourteen  years,  and  apply  within  ten  days 
after  the  service  of  the  summons;  if  he  be  under  the  age  of 
fourteen,  or  neglect  so  to  apply,  then  upon  the  application  of 

1  Guttman  v.  Scannoll,  7  Cal.  455.  "<  See  Howard  v.  Valentine,  20  Cal. 
For  other  authorities  see   Dunderdale    282. 

V.  Grymes^lf)  H.>w.  Pr.  195;  Rouillier  •  Sargent  v.  Wilson,  5  Cal.  501;  ap- 

V.  W«rni(ki,  3  E.  D.  Smith, 310;  Avo-  proved  in  Moss  v.  Warner,  10  Id. 297; 

gadro  V.  Bull,  4  M.  3«5;  Freeman  v.  Kovalk  v.  Kraemer,  8  Id.   6(3;  Marks 

Orser,   6  Duer,   477.     And  she   must  v.  Miirsh,    9  Id.  9t) ;    Horn  v.  Volcano 

be  sued  alone:  McKune  v.  McGarvey,  Wat.  Co.,  13  Id.  70;   Anthony  v.  Nye, 

6  Cal.  497;    approved  in  Guttman  v.  30  Id.  401. 

Scannell,  7   Id.  455;  and  Camden  v.  'Anderson  v.   Hill,  53  Barb.  238; 

Mullen,  29  Id.  5  •)4.  Peak  v.  Lemon,   1  Lans.  295;  Tait  v. 

2  Keller  V.  Hicks,  22  Cal.  457.  Culbertson,  57  Barb.  9;  Kc.wing  v. 
»  Kohner  V.  Asheiiau.T,  17  Cal.  579.  Manley,  Id.  479;  49  N.Y.  192;  Brazil 
♦Mills  V.  Van  Voorhies,    20   N.  Y.  v.  Moran,   8  Minn.  236;    Ball  v.  Ben- 

412;  10  Abb.  Pr.  152;  Rusher  V.  Mor-  nett,  21    Ind.   427;    Turner  v.  Hitch- 

ris,  9  How.  Pr.  26rt.  cock,  20   Iowa,    310;     Musselman  v. 

'Anthony    v.     Nye,   80    Cal.    401;  Galligher,  32  Id.   383;    McEltresh  v. 

Conde  V.   Khc{Krl,'4  How.   Pr.  75;  Kirkendall,  86  Id.  224;  Lusev.  Oaks, 

Conde  v.  Nelson,  2  Code  R.  58.  Id.  5t)2 ;  Curd  v.  Dodds,  6  Bush,   681 ; 

«  Do  Uprev  v.    De  Uprey,    27   Cal.  Coolidge  v.  Parris,  8   O'do  BU    594. 

829;  Ripplft'v.  Gilborn,  8  How.  Pr.  »  CaL  Code  0.  P.,  sec.  372. 
400;  Tanner  0.  NiKs,  1  Barb.  663. 


§   172.        ACTIONS  ARISING  FROM  CONTRACTS,  ETa  91 

any  other  party  to  the  action,  or  of  a  relative  or  friend  of  the 
infant.^ 

§  168.  For  Infringement  of  Patent. — ^In  selling  an  article 
■which  infringes  upon  a  patent,  the  agent  may  be  joined  with  the 
manufacturer  as  a  party  defendant  in  an  action  against  them  as 
trespassers.^ 

§  169.  Injunction. — In  an  action  to  enjoin  the  issuance  of 
bonds  by  fund  commissioners,  it  is  necessary  that  some  of  the 
parties  to  wliom  bonds  are  to  be  issued  should  be  parties  de- 
fendant.^  In  a  bill  of  peace  to  restrain  vexatious  litigation,  al- 
though some  of  the  parties  be  mere  accommodation  grantees, 
they  have  a  right  to  be  heard  at  law  in  their  own  defense.^ 
Whe  e  one  of  the  defendants  in  a  joint  judgment  sues  to  have 
the  judgment  perpetually  enjoined,  his  co-defendants  should  be 
made  parties  to  the  action.* 

§  170.  Injuries  Caused  by  Negligence. — In  an  action  to 
recover  for  damage  done  to  the  pro[)erty  of  the  plaintiff  by 
reason  of  the  brealiing  away  of  a  dam  built  by  contiactors,  when 
the  e;n[)Ioyers  exercise  no  supecvision,  give  no  directions,  furnish 
no  materials,  and  have  not  accepted  the  work,  the  contractors 
alone  are  liable.^  After  the  acceptance  of  the  work,  the  owner  is 
also  liable  for  damage  resulting  from  faulty  construction. '  Com- 
mon carriers,  for  loss  of  goods,  may  be  sued  jointly  or  sev- 
eral ly.^ 

§  171.  Action  for  Legacy  Charged  on  Land.— Pur- 
chasers of  land  in  unequal  portions,  charged  with  the  payment 
of  a  legacy,  must  be  joined  in  an  action  for  the  legacy. ^ 

§  172.  Actions  against  Partners. — In  California  partners 
may  be  sued  by  their  common  name,  whether  it  comprises  the 
names  of  the  persons  associated  or  not.^"  In  such  case  the 
statute  provides  that  the  judgment  may  run  against  the  joint 
and  individual  property  of  the  party  served,  and  against  the 
joint  property  of  the  partner  not  served.  The  constitutionality 
of  the  statute,  so  far  as  it  attempts  to  impose  a  liability  upon  the 
person  or  property  of  the  partner  not  served,  has  been  more 
than   doubted. ^^    But  a  party  can    only  be    bound    on    a   note 

»  Cal.  Code  C.  P.,  sec.  373,  subdiv.  Pratt  v.  Lick,  38  Id.  G91 ;  O'Hale  v. 

2;  N.  Y.  Code,  sec.  1 16 ;  Laws  of  Ore-  Siicramento,  48  Id.  212. 

gon,  sec.  27.  '  Boswell  v.  Laird,  8  Cal.  469;  Fan- 

*  Bufk  V.  Cobb,  9  Law  Rep.   546;  joy  v.  Scales,  29  Id.  249. 

8Pe  Brvce  v.  Dorr,  3  McLean,  582.  "»  Mcintosh  v.  Elision,  28  N.  Y.  169; 

»  Hutchinson  v.  Burr,  12  Cal.  103 ;  af-  Merrick  v.  Gordon,  20  Id.  93. 

firmed  in  Patterson  v. Yuba  Co.,Id.l05.  »  Swasey  v.  Little,  7  Pick.  296. 

*  Knowles  V.  Inches,  12  Cal.  212.  l"  Cal.   dde  Civil  Proc,   sec.  285; 
»  Gates  V.  Lane,  44  Cal.  392.  "Welch  v.  Kirkpairick,  30  Cal.  202. 

*  Boswell  v.  Laird,  8  Cal.  469;  Du  "  Tay  v.  Hawley,  89  CaU  93. 


92  GENERAL  PRINCIPLES.  §    178. 

executed  in  a  firm  name,  who  is  actually  a  member  of  the  firm 
executing  the  same,  or  has  held  himself  out  as  a  membi-r  so  as 
to  give  the  firm  credit  on  his  responsibility.  So  it  would  seem, 
dormant  partners  not  di'^closed  need  not  be  joined  as  defend- 
ants.^ All  partners  are  liable  for  fraudulent  representations  of 
one  made  in  the  course  of  partnership  business.^  So  a 
partner  is  liable  to  third  persons  for  injuries  occasioned  by 
negligence,  if  committed  in  the  course  of  the  partnership  busi- 
ness.^  In  suit  to  take  an  account  and  dissolve  a  mining 
partnership,  all  those  owning  interests  are  necessary  parties 
defendant.^  A  partner  may  be  sued  at  law  by  his  copartner  or 
one  who  has  been  such,  where  the  balance  has  been  ascertained 
by  the  act  of  all  the  partners,  and  agreed  to  as  constituting 
such  balance.* 

§  173.  Actions  against  Principal  and  Agent, — A.  prin- 
cipal, though  himself  innocent,  is  liable  for  fraud  or  mis- 
conduct of  the  agent  acting  within  the  scope  of  his  authority.* 
But  not  in  matters  beyond  that  scope.'''  And  where  the 
principal  is  known,  he  alone  is  liable. ^  But  an  agent  may  ren- 
der himself  personally  liable  by  not  disclosing  the  name  of  his 
principal.^  If  on  the  face  of  an  instrument  not  under  seal,  ex- 
ecuted by  an  agent  with  competent  authority,  by  signing  his 
own  name  simnly,  it  appears  that  the  agent  executed  it  in  be- 
half of  the  principal,  the  principal  and  not  the  agent  is  bound. i*' 
Where  a  party  makes  a  purchase  from  an  innocent  agent,  who 
afterwards  parts  with  the  money  of  his  principal,  and  the  pur- 
chase avails  the  purchaser  nothing,  no  legal  right  of  complaint 
will  lie  against  the  agent.^'  The  principal  and  agent  are  jointly 
liable  for  an  injury  caused  by  negligence  of  the  agent.^'^ 

1  North  V.  Bloss,  30  N".  Y.  374;  Co.,  20  Barb.  493;  Thomas  v.  Win- 
Wood  V.  O'Kellev,  8  Gush.  406;  Lord  che-^ter,  2  Seid.  897. 
V.  Baldwin,  6  Pick.  352;  see  also  N.  '  N.  Y.  Life  Ins.  and  Trust  Co.  v. 
Y.  Dry  Dock  Co.  v.  Treadvvell,  19  Beeho,  3  Seld.  30*;  see  also  Mochan- 
Wend.  525;  Ciarkson  v.  CirtHr,  3  W  Bmk  v.  N.  Y.  and  N.  H.  K.  fi. 
Cow.  84;  Clark  v.  Miller,  47  B-irb.  Co.,  3  Kern.  599;  4  DutT,  670. 
628;  Mitchell  r.  Doll,  2  Ear.  &  G.  »  Conro  v.  Fort  Henry  Iron  Co.,  12 
159;  Hurlbut  v.  Post,  1  B  .sw.  28.  B  irh.  27. 

*  Griswold  v.  Haven.  25  N.  Y.  595.  »  Nason  r.  Cockroft.  3   Duer,  366 ; 
»  Colter  V.  Beltner,  1  Bosw.  490,  Cabre  v.  Starless,  1  Hilt.  160;  Blake- 

*  Settembre  v.  Putnam,  30  Cal.  490.  man  v.  Maekay,  LI.  266. 

•Ross  V.   Cornell,  45  Cal.  133.     As         "Haskell   v.   Cornish,  13  Cal.  45; 

to  partnershins,  e:eneral  aifd  special,  afBrnied  in   Shaver  v.  Ocean  Mining 

the  powers  and  authority  of  partners,  Co.,  21   Id.  45;  Hall  v.  Crandall,  29 

their  mutujil  obliijalions  and  liability.  Id.  571  ;  Love  v.  S.  N.  L.  W.  and  M. 

etc.,  see  Civil  Code  Cal.,  sees.  2424-  Co  .  32  Id.  654. 
2520.  11  Engelsv.  Heatlv,  5  Cal.  186. 

*  Dwinelle  v.  Henriquez,  1  Cal.  892;  '2  Phelps  v.  Wait"  30  N.  Y.  78;  Cal. 
Adams  v.  Cole,  1  Daly,  147;  Hunter  C.  C,  sec.  2338;  and  t'enerallyin  rela- 
T.  Hudson  River  Iron  and  Machine  tiun  to  agency,  see  tit.  9,  C.  C.  of  CaL 


§   176.        ACTIONS  ARISING  FROM  CONTRACTS,  ETC.  93 

§  174.  Actions  for  Trespass. — Generally  a  trespass  com- 
mitted by  several  persons  acting  together  creates  a  several  lia- 
bility ;  but  if  the  trespass  is  joint,  all  the  trespassers  mny  be 
joined.*  A  justice  of  the  peace  who  issues  an  execution  com- 
manding the  arrest  of  the  judgment  debtor,  and  the  attorney 
■who  procures  the  execution  to  be  issued,  in  a  case  in  which  both 
know  that  the  law  prohibits  an  arrest  in  such  action,  are  jointly 
liable  to  the  debtor  in  trespass.^  Trespass  lies  against  a  mu- 
nicipal corporation. 3 

§  175.  Actions  against  Trustees. — In  an  action  to  carry 
out  a  trust  deed,  or  against  a  trustee,  for  breach  of  trust,  all  the 
ce-stuis  que  trust  are  necessary  parties.^  But  not  in  an  action  to 
set  aside  a  trust  deed.^  A  party  not  a  trustee  may  be  joined  or 
not,  at  the  option  of  the  plaintiff.''  In  an  action  by  one  of  sev- 
eral certuis  que  trust  to  declare  and  enforce  an  implied  trust,  all 
who  claim  to  be  entitled  to  a  portion  of  the  trust  estate  are 
proper  parties  defendant.'  But  when  such  share  is  ascertained, 
each  claimant  may  sue  alone  ;8  or  for  breach  of  trust.^  Per. 
sons  holding  funds,  and  who  have  always  dealt  with  them  as  if 
they  were  trust  funds,  are  liable  for  losses  occasioned  by  im- 
proper investments,  t'v>rgh  they  did  not  in  fact  know  who  the 
cestuis  que  trust  werr  ^  Sj,  where  A.  was  indebted  to  plaintiff, 
and  conveyed  his  pi  op  rty  to  B.,  to  be  disposed  of  for  his  ben- 
efit, and  had  drawn  an  order  in  favor  of  plaintiff  on  B.,  who 
had  accepted  it,  and  B.  subsequently  conveyed  a  portion  of  the 
property  to  A.,  without  consi'leration,  it  was  held  that  A.  was  a 
proper  and  necessary  party  to  the  action.^ 

§  176.  Pe.sons  Severally  Liable  on  Same  Obligation 
or  Instrameiit. — Persons  severally  liable  upon  the  same  obli- 
gation or  instrument,  including  the  parties  to  bills  of  exchnnge 
and  promissory  notes,  and  sureties  on  the  same  and  separate 
instruments,  may   all  or  any  of  them  be   included  in   the  same 

1  Sumner  v.  Tileston,  4  Pick.  303;  *  Russell   v.   Lasher.  4  Barb.  232; 

Creed    v.    Hartman,   29   N.   Y.    5.1 1 ;  Wh.eler  v.  Wh-edon.  9  How.  Pr.  293; 

Kasson  V.  The  People,  44  Barb.  317;  Scud  ler  v.  Voorliis,  5  Sandf.  271;  see 

Woodbrid^e  v.   Camor,  49  Mh.  353.  also  Wallace  v.  E  iton.  6  How.  Pr.  99. 

That  thev  mav  b"  sued  jointlv.  see  '  Bitemaa   v.    MargerUon,   6  Hare 

Kingv.  Or-er,'  4  Duer,  431;   Water-  499. 

bury  V.  Westervelt.  6  Seld.  598 ;  H<'r-  'Jenkins   v.   Frink,  30  Cal.    586; 

riii^  V.  Hoppock,  3  Duer,  20;  Marsh  West  v.  Rindall.  2  Mason.  181.     Arm- 

V.  Backus.  l(j  Barb.  488.  strong    v.    Lear,  8  Pet.    62 ;  General 

*  Sullivan  v.  Jones,  2  Grav,  570.  ,  Mutual  Insurance  Company  v.   Ben- 

»  Allen  V.  Decatur.  23  Ill."332.  son  5  Duer,  MS. 

«  Col'^rrove  V.  Tallmadge,  6   Bosw.  •  Smith  v.  Snow,  3  Madd.  10. 

289;    Bi<hop   v.  Houghton,    1  E.    D.  "  Pfrrv  v.  Knott.  5  B.av.  293. 

Smith,  566:  Bank  of  British  N.  A,  v.  "  Ex  parte  Norris,  L.  R .  4  Ch.  280. 

Suvdam,  ti  How.  Pr.  379;  Johnson  v.  ^'  Luca'*  v.  Pavtie,  7  Cal.  92;  Shaver 

Snyder,  8  Id.  498.  v.  Braiuard,  29  Barb.  25. 


94  GENERAL  PRINCIPLES.  §    176. 

action  at  the  option  of  the  plaintiff.^  This  section  applies 
only  to  written  obligations.'  It  applies  to  bonds,  as  well  as 
bills  of  exciiancrc  and  promissory  notes  ;3  and  to  eases  of  joint 
and  several  contracts.^ 

Persons  jointly  and  severally  liable  may  be  sued  together  or 
separately,  at  the  option  of  the  plaintiff.^  But  in  actions  on 
joint  and  several  obligations,  an  administrator  can  not  be  joined 
with  the  survivor,  because  against  one  the  judgment  would  be 
de  bonis  t  St' itoris,  and  against  tlie  other  de  bonis  propriis.^  To 
create  a  several  liabilty,  express  words  are  necessary.'''  In  New 
York,  it  seems  the  plaintiff  may  sue  one  or  all  of  the  obligors 
of  a  joint  and  several  bond ;  but  in  strictness  of  law,  he  can  not 
sue  an  intermediate  number. ^  The  practice  is,  however,  differ- 
ent in  California,  wliere  one  or  all  of  an^'^  intermediate  number 
may  be  made  defendants,  at  the  option  of  the  plaintiff. ^  So, 
also,  in  cases  of  a  promissory  note,  and  mortgage  to  secure  the 
same.^''  Although  the  several  parties  to  a  bill  or  note  may  be 
sued  in  one  act;on,  yet  their  being  so  sued  does  not  make  them 
jointly  liable, ^^  or  joint  debtors. '^  The  common-law  rule,  that 
where  defendants  are  sued  on  a  joint  contract,  recovery  must 
be  had  against  all  or  none,  is  mo  litied  by  the  code.^^  Bq^  one 
of  two  joint  debtors,  not  served  with  process,  is  not  a  proper 
party  defendant  in  an  action  upon  the  judgment  against  the 
party  on  whom  service  of  process  was  made.'^  So,  where  joint 
debtors  reside  in  different  states,  they  may  be  sued  separately.^ 

iCMlifornia  Code    C.  P.,  sec.   883;  Jonos,  11  How.  Pr.  569;  De  Ridder  v. 

N.    Y.  Cinle,    sec.     IJO;     Iowa,   sec.  Sulinnnnriiorii,  10  Barb.  688;  tinow  V. 

2764;  Ongon,  sec.  36;  Idabo,  sec.  15;  11  >w  ird,  2o  Id,  65. 

AriZ'irm,  st-c.   15  *  May  v.  Hitison,  6  Cil.  642. 

*  SpeiK'pr    V.    VVheelock,  11     Leg.  ''  Bady  v.  IWiiold-i,  13  Cnl.  31, 
Obi».  329 ;  Tibhits  v.  Peiry,  24  Barb  ;-!9.  *  Luroy  v.  Sliaw.  2  Duer,  626 ;  Minor 

*  People  V.  Hartley,  21  Cal.  58');  v.  Meelianics'  Bank  of  Alexandria,  1 
People  V.  Love,  25  Id.  530;  Braiivard  P'-U  S.  Cu  4i);  Amis  v.  Smith.  16  Id. 
V.  Jones,  11  How.  Pr.  669.  As  to  303;  Biainard  v.  Joms,  II  How.  Pr. 
when  the  bondl)olders  of  bonds  issut'd  569;  Loomis  v.  Brown,  16  Barb.  325; 
by  a  county  should  be  made  parlies  Phalen  v.  Dingee,  4  E  D.  ISmilh,  379; 
defendant  in  suit  against  the  countv,  Allen  v.  Fo.«giie,  11  How.  Pr.  218. 
see  HutihinsoM  v.  But,  12  Cal.  103;  *  Lewis  v.  Clarkin,  18  Cil.  400;  see 
PattiTson  V.  SupiTvisors  of  Yuba  Co.,  also.  People  v.  Love,  25  Id.  620;  Code 
12  Id.   106.     In  Oregon,  the  sureties  C  P..  sw.  3S3. 

on   an   executor's    bond   can   not   be  *"  Eciman  v.  Turman,  24  Cal.  879. 

sued  until  after  default  in  the  probate  "  .\ifred  v.  Walkins,  1  Code  R.  (N. 

court:    Hamlin  v.  Kenney,  Laws  of  S.)   "113. 

Or..  1866,  p.  55.  *^  lielsey  v.  B-adbury,  21  Barb.  531; 

*  Humphr-ys  v.  Crane,  5  Cal.  178;  Far  ners'  B  mk  v.  Blair,  44  Id.  642. 
Stearns  V.  Aguirre,  6  Id.  176,  ^' California  Code  Civil    Proc,  sec, 

6  Eiiysv.  Donnithorne,  2  Burr.  1190;  9^9;   People  v.  Fri-bee,   18    Cal.  402; 

Eccleston  V  Clipsham.  1   Saund.  153;  L"wi-<  v,  Clarkin,  18  Id.  399. 

Alfred  v.  Watkins.  1   C.  R.  343;   Kel-  »'  Tav  et  al.  v.  Hawley,  «9  Cal.  93. 

sey  v,  Bradbury,  21  Bub.  531 ;  Parker  »»  Urown  v.  Birdsall,  29  Barb.  649. 
V.   Jackson,    16  Id.  83;    Brainard  v. 


§   176.        ACTIONS  AEISING  FROM  CONTRACTS,  ETC. 


95 


It  seems  that  different  parties,  liable  for  tne  same  sum,  but 
under  different  contracts,  can  not  be  joined  in  the  same  action.^ 
So  held  in  New  York,  as  to  a  guaranty  written  under  a  promis- 
sory note. 2  And  that  the  guarantor  can  not  be  sued  in  the 
same  action  with  the  maker. ^  It  was  there  held,  also,  that  the 
liability  of  a  purchaser  and  his  guarantor  is  several.^  So,  also, 
of  a  lessee  and  his  surety.* 


1  Allen  V.  Fofgate,  11  How.Pr.  218; 
Glencoe  Mut.  Ins.  Co.  v.  Harold,  20 
Barb.  298;  DeRidderv.Schermerhorn, 
10  Id.  6H8 ;  see,  also.  Brown  v.  Curtiss, 
2  Comst.  225;  Barker  v.  Cassidv.  16 
Barb.  177;  White  v.  Low,  7  Id.  204. 

'  Brewster  v.  Silence,  4  Seld.  207; 
affirmiiigj  S.  0-,  11  Barb.  144;  Kelsey 
V.  Brndbury,  21  Id.  440;  Alfred  v. 
Watkins,  1  C  R.  (N.  S.)  843:  Draper 


V.  Snow,  20  N.  T.  831 ;  Church  v. 
Brown,  29  Barb.  486. 

«  Allen  V.  Fosgate,  11  How.  Pr. 
213. 

*  Leroy  v.  Shaw,  2  Duer,  626 ;  Spen- 
cer V.  Wheelock,  11  L.  O.  329;  but  see 
Cal.  Code  C.  P.,  sec.  383,  and  Civil 
Code,  title  "Negotiable  Instruments." 

'  Phalea  T.  Dingee,  4  E.  D.  Smith, 
879. 


PART  SEC0I!^D. 

ANALYSIS  OF  PLEADINGS. 


CHAPTER   I. 

OF  PLEADINGS  IN  GENERAL. 

§  177.  Pleadings  are  defined  by  the  Code  of  Civil  Procedure 
of  California  as  follows : 

The  pleadings  are  tlie  formal  allegations  by  the  parties  of 
their  respective  claims  and  defenses,  for  the  judgment  of  the 
court. 

The  forms  of  pleading  in  civil  actions,  and  the  rules  by  which 
the  sufficiency  of  the  pleadings  is  to  be  determined,  are  those 
prescribed  in  this  code. 

The  only  pleadings  allowed  on  the  part  of  the  plaintiff  are* 

1.  The  complaint; 

2.  The  demurrer  to  the  answer. 
And  on  the  part  of  the  defendant : 

1.  The  demurrer  to  the  complaint ; 

2.  The  answer.^ 

The  definition  given  by  Chitty^  is  this:  "Pleading  is  the 
statement  in  a  logical  and  legal  form  of  the  facts  which  consti- 
tute the  plaintiff's  cause  of  action,  or  the  defendant's  ground  of 
defense ;  it  is  the  formal  mode  of  alleging  that  upon  the  record, 
which  would  be  the  support  of  the  action  or  the  defense  of  the 
party  in  evidence." 

§  178.  Object  of  Pleading— The  Issue.— The  object  of 
pleading  is  the  production  of  a  material  issue  between  the  par- 

*  Sees.  42(M22.    Similar  provisions    the    answer   is    required   in   certain 
are  found  in  the  codes  of  all  the  states,     cases, 
except  that  in  some  states  a  reply  to        '1  Ch.  Fl.  236w 

BSTKE,  VOL.  1—7.  87 


98  ANALYSIS  OF  PLEADINGS.  §    179. 

lies ;  that  is,  a  material  matter  of  law  or  fact  affirmed  upon  the 
one  side  and  denied  upoa  tlie  other,  and  which  is  the  matter 
•disputed  between  the  parties  and  to  be  tried  or  determined  by  the 
'Court  or  jury.  Issues  are  of  two  kinds:  of  law  and  of  fact.  An 
iissue  of  law  is  raised  by  a  demurrer,  which  admits  the  facts  stated 
an  the  pleading  demurred  to,  and  denies  that  the  law  applicable 
ix>  those  facts  entitles  the  plaintiff  to  maintain  his  action,  or  that 
the  facts  stated  in  the  answer  constitute  a  defense ;  or  points  out 
some  defect  which  in  law  ousrhtto  prevent  the  party  whose  plead- 
ing is  demurred  to  from  obtaining  the  relief  sought  in  his  com- 
plaint or  answer.  As  will  be  seen  hereafter,  these  defects  must 
appear  upon  the  face  of  the  pleading  demurred  to.  An  issue  of 
fact  is  raised:  1.  By  a  denial  in  the  answer  of  facts  stated 
•in  the  complaint;  and,  2.  By  operation  of  the  code  where 
new  matter  in  the  answer  is  considered  as  denied  by  the 
plaintiff.^ 

§  179.  Forms  of  Action  Abolished. — Under  the  code  of 
(California,^  and  in  other  States  which  have  adopted  a  similar 
system  of  procedure,  only  one  form  of  civil  action  exists.  By 
this  is  meant  that  the  formal  distinctions  between  the  different 
oomraon-Iaw  actions,  assumpsit,  debt,  covenant,  trespass,  etc., 
and  also  between  actions  at  law  and  in  equity,  are  svsrept  away.^ 
Formerly  it  was  necessary  to  decide  what  form  of  action  must  be 
resorted  to  in  order  to  obtain  the  relief  justified  by  the  facts, 
and  this  form  of  action  must  be  stated  in  the  writ,  though  briefly, 
as  that  the  defendant  is  required  to  answer  the  plaintiff  "  in 
an  action  upon  promises,"  or  "or  in  an  action  of  debt,"  etc., 
and  this  form  of  action  must  be  adhered  to  in  the  declaration ; 
so  that  the  pleader  was  required  to  decide  before  he  had  the 
writ  issued  what  his  form  of  action  must  be,  and  in  many  cases 
it  was  not  easy  to  determine  what  the  form  should  be ;  and  the 
consequences  of  a  mistake  were  serious.  So  he  was  required  to 
determine  at  his  peril  wlicther  he  must  resort  to  a  court  of  law 
or  a  court  of  equity.  But  now  these  formal  distinctions  are 
taken  away,  and  the  pleader  is  required  to  state  the  facts  which 
constitute  his  cause  of  action ;  and  whatever  relief  those  facts, 
being  established,  may  entitle  him  to,  he  will  obtain  whether 
legal  or  equitable,  or  both,  or  whether  they  would  have  made  a 
case  in  aesumpsit,  debt,  case,  or  other  form  of  common-law 
action.     It  was  held  by  tlie  supreme   court   of  California,  that 

*  The  code  of  Ohio  and  some  other         •  California  Code  of  Civil  Proced- 
Btatos   requires   a  replication    by  the     ure,  sec.  807. 
plaintiff  to  new  matter  set  up  lathe         *  Miller  v.  Van  Tasseli  24  Cal.  458. 


§  179.  PLEADINGS  IN  GENERAL.  99 

"  under  the  code  of  practice,  we  have  but  one  system  of  rules 
respecting  pleadings,  which  governs  all  cases  both  at  law  and  in 
equity.  These  rules  are  clearly  laid  down  in  the  practice  act; 
and  although  in  construing  that  act  we  resort  to  former  ad- 
judications, and  the  old  and  well-established  principles  of 
pleading  at  C'lmmon  law,  yet  the  former  distinctions  which 
existed  between  common  law  and  equity  pleadings  no  longer 
exist.  "1 

In  the  New  York  Code  of  Procedure,  section  69,  the  distinc- 
tions between  actions  of  law  and  suits  in  equity  is  expressly 
abolished.  In  Ohio,  Iowa,  Nevada,  Oregon,  Idaho,  Arizona 
Territory,  and  most  of  the  states  and  territories  of  the  Union, 
as  well  as  New  York  and  California,  "  the  distinction  in  the 
modes  of  obtaining  relief  which  formerly  characterized  the  pro- 
ceedings in  courts  of  law  and  in  equity  are  abolished,"  but  only 
as  to  the  forms  of  actions,  and  not  as  to  the  principles  which 
govern  them.^  In  Cole  v.  Reynolds,  18  N.  Y:  74,  Harris,  J., 
says:  "By  the  code,  the  distinctions  between  actions  at  law 
and  suits  in  equity  are  abolished.  The  course  of  proceeding  in 
both  classes  of  cases  is  now  the  same.  Whether  the  action 
depends  upon  legal  principles  or  equitable,  it  is  still  a  civil 
action,  to  be  commenced  and  prosecuted  without  reference  to 
this  distinction.  But  while  this  is  ao  with  reference  to  the 
form  and  course  of  proceeding  in  the  action,  the  principles  by 
which  the  rights  of  the  parties  are  to  be  determined  remain 
unchanged.  The  code  has  given  no  new  cause  of  action.  In 
some  eases  parties  are  allowed  to  maintain  an  action  who  could 
not  have  maintained  it  before,  but  in  no  case  can  such  an  action 
be  maintained  where  no  action  at  all  could  have  been  main- 
tained before  upon  the  same  state  of  facts.  If,  under  the 
former  system,  a  given  state  of  facts  would  have  entitled  a 
party  to  a  decree  in  equity  in  his  favor,  the  same  state  of  facts 
now,  in  an  action  prosecuted  in  the  manner  prescribed  by  the 
code,  will  entitle  him  to  a  judgment  to  the  same  effect.  If  the 
facts  are  such  that,  at  common  law,  the  party  would  have  been 
entitled  to  a  judgment,  he  will,  by  proceeding  aa  the  code 
requires,  obtain  the  same  judgment."  "What  was  an  action 
at  law  before  the  code,  is  still  an  action  founded  on  legal  prin- 

1  Bowen  v.  Aubrey,    22   Cal.  570;  sec.  260  8;  Trnphfleen  v.  Trnpbflpen, 

CJor  litT  V.  Schlo.<8,  12  Id.  143 ;   Payne  40  Bnrb.  517  ;   McBurnevv.  VVellman, 

V.  Tri'iulwell.  16  Id.  243.  42  Barb.  390;    Dunnell  v.  Keleltng,  16 

'  Whitt.  Pr.  553;   see   also,  1  Van  Abb.  Pr.  20>;  Van  Renssclaepv.  Keud, 

Santv.  PI.  39;  Nash's  ().  P.  2;  2  Till.  2f>  N.  Y.   5(i8;    Deumau  v.  Price,  40 

&  Sh.  1  •  Swann's  PI.  21 ;  SUt.  of  Iowa,  Burb.  219. 


100  ANALYSIS  OF  PLEADINGS.  §    180. 

ciples ;  and  what  was  a  bill  in  equity  before  the  code  is  still  a 
civil  action  founded  on  principles  of  equity.^ 

§  180.  Distinctions  between  Legal  and  Equitable 
Rights  Preserved.  — In  adjuiiic-ations  under  the  New  York 
code,  it  is  held  that  although  the  forms  of  actions  at  law  and  in 
equity  are  abohshed,  yet  that  even  in  the  pleadings,  or  the  man- 
ner of  stating  the  facts  which  constitute  plaintiff's  cause  of 
action,  there  is  still  a  broad  distinction  between  cases  where 
legal  instead  of  equitable  relief  is  aslvcd.  Following  in  tlie 
same  track,  the  supreme  court  of  California  has  held,  "  tiie  dis- 
tinction between  law  and  equity  is  as  marked  as  ever,  though 
there  is  no  difference  in  the  form  of  a  bill  in  chancery  and  a 
common-law  declaration  under  our  system."* 

§  181.  Legal  and  Equitable  Relief  Granted  in  Same 
Action.  —  Legal  and  equitable  relief  may  be  asked  for  in  the 
same  action,  but  the  wrongs  suffered  must  be  those  arising  out 
of  or  from  one  fed  the  same  transaction,  and  which  would  be 
consistent  with  the  relief  asked. ^  In  the  case  of  The  Globe 
Ins.  Co.  V.  Boyle,  21  Ohio  St.  119,  it  was  held  that  an  action 
might  be  brought  to  reform  a  contract,  an  I  to  recover  on  said 
contract  so  reformed;  and  if,  when  reformed,  the  cause  of  action 
would  have  been  a  common-law  action,  then  the  court  will  first 
decide  upon  the  equitable  case  to  reform  the  contract,  and  then 
submit  the  case  to  the  jury  on  the  contract  so  reformed.  So 
also  when  relief  is  asked  for  in  the  alternative.*  For  a  party 
may  have  such  relief  as  is  adapted  to  his  case  from  the  proofs. ^ 
It  will  therefore  be  observed  that  relief  is  now  administered 
without  reference  to  the  technical  and  artificial  rules  of  the 
common  law.^  The  prayer  of  a  complaint  is  not  the  subject  of 
a  demurrer."''  The  intention  of  the  legislature  was  evidently  to 
adopt  a  "uniform  and  complete  system," ^  whereby  the  old 
and  cumbersome  forms  of  pleading  would  be  dispensed  with. 
Yet  the  facts  constituting  plaintiff's  cause  of  action  are  re- 

1  Nash's  PI.  &Pr.,  vol.  1,  p.  4;  see  Beusen  v.  Youngr,  29  N.  Y.  29;  Don- 
also  ChI.  Code  C.  P ,  sec.  307.  man  t.  Prince,  40  Barb.  219;  Hmn- 

«  R.>we   V.   Chandler,    1   Cal.    167;  mond  v.  Cockle,  2  Hun.  N.   ¥.,495; 

Dewitt  V.  Hayes,  2   Id.  463;  Lubert  Bvxbie  v.  Wood,  24  N.  Y.  610;  White 

V.    Chauviteau,    3  Id.  458;    Smith  v.  v.' Madison,  26  Id.  117. 

Rowp,  4  Id.  6;    Wig2;ins   v.  McDon-  •  Rowe  v.    Chandler,  1    Cal.    168; 

aid,  18  Id.  127;  Howard  v.  Tiffany,  3  Jones  v.  Steamship  "Cortes,"  17  Id. 

Sandf.  695;  1  Van  Santv.  PI.  41.  487;   White   v.   Lvons,  42    Id.    379; 

8  Gray  et  al.  v.  Dousrherty,  25  Cal.  Grain  v.  Aldrich,  .38  Id.  514. 

266;  More  V.  Massini,  32  Id.  590.  'f  Althof  v.  Conheim,  38  Cal.  230; 

*  Stevenson  v.  Buxton  15  Abb.  Pr.  Hale  v.  Omaha  National  Bank,  49  N. 

852 ;  Barlow  v.  Scott,  24  N.  Y.  40.  Y.  626. 

«  White  v.  Lyons,  42  Cal.  279 ;  Van  *  Humiston  v.  Smith,  21  Cal.  134. 


§   183.  PLEADINGS  IN  GENERAL.  101 

quired  to  be  stated  as  fully  under  the  new  practice  as  under 
the  old.i 

§  182.  Of  What  Pleadings  Consist. — Pleading  consists  in 
alleging  facts  upon  the  one  side  and  denying  them  upon  the 
other.'^  But  the  facts  so  alleged  always  presuppose  some  rule 
of  law  applicable  to  them.^  And  hence  in  all  complaints,  while 
the  law  governing  the  facts  and  the  facts  coming  within  the  law, 
taken  together,  exliibit  tlie  cause  of  action,  yet  the  facts  are 
expressed,  while  the  law  is  understood ;  for  it  would  be  of  no 
avail  ''  for  either  party  to  state  facts  of  which  no  principle  of 
law  could  be  predicated  in  his  favor."  *  Tiierefore  the  pleader 
first  inquires  by  reference  to  the  law  for  a  remedy,  and  if  he 
finds  thtre  is  no  legal  remedy,  he  at  once  knows  there  has  been 
no  wrong  known  to  the  law  committed,  and  that  the  courts  can 
give  no  relief.  As  fictitious  issues  are  by  the  code  abolished, ^ 
analogies  of  the  old  system  of  pleading  are  not  in  all  cases  a 
safe  guide  under  the  eode.^  Two  prominent  elements  intended 
in  the  new  system  are,  that  falsehood  shall  not  be  put  upon 
the  record,  and  that  the  pleadings  should-  disclose  the  facts  re- 
lied on  in  support  or  defense  of  an  action. 

§  183.  Distinction  between  the  Pleadings  and  the 
Action. — Tlie  difference  between  the  pleadings  and  the  action 
is  tliat  the  pleadings  show  the  nature  of  the  demand,  and  the 
defense ;  or,  in  common  terms,  the  pleadings  are  the  complaint 
and  answer ;  '  while  the  action  is  the  history  of  the  whole  cause, 
including:  1.  The  complaint,  wliich  names  the  parties,  and 
states  the  injury  suffered ;  2.  The  process,  which  brings  the 
party  into  court  to  answer  as  to  these  injuries;  3.  The  answer 
of  defendant,  which  admits,  or  denies,  or  avoids,  etc. ;  4.  The 
trial,  wherein  the  nature  of  tie  demand  and  defense  are  pre- 
sented by  legal  proofs;  5.  The  judgment,  wherein  the  court 
allows  or  refuses  the  remedy  asked ;  6.  The  execution,  by  which 
the  legal  rights  of  the  parties  are  obtained.  It  is  provided  by 
the  code  tliat "  the  pleading  on  the  part  of  the  plaintiff  shall 
be  the  comi)laint,  and  demunrer  to  defendant's  answer ;  and  on 
the  part  of  the  defendant,  the  demurrer  and  answer  '^  Since 
the  statutes  of  our  State  have  in  express  terms  defined  what  the 
pleadings   are,  it  requires  no   reference  to  the  text-books  on  the 

1  Millpr  V.  Van  Tassel,  24  Cal.  4fi3 ;        *  Gould's  PI.,  sec.  2. 
Conaughty  v.  Nichols,  42  N.  Y.  83,        *  New  Y-.rk  Code,  sec.  72;Snellv. 

87.  Louoks,  12  Barb.  385. 

'  Buddington  v.  Davis,  6  How.  Pr.        *  Bush  v.  Prosser,  1  Kern.  347. 
402.  '  1  Bur.  Law  Diet.  38. 

»  Gould's  PI.,  sees.  2,  3.  «  Caliioruia  ^^ode,  sec  422. 


102  ANALYSIS  OP  PLEADINGS.  §    184. 

subject  for  further  definition.  It  is  also  provided  by  statute 
that  "when  a  deferi'lant  is  entitled  to  relief,  as  against  the 
plaintiff  alone,  or  against  the  plaintiff  and  co-defendant,  he 
may  make  a  separate  statement  in  his  answer  of  the  necessary 
facts,  and  pray  for  the  relief  sought,  without  bringing  a  dis- 
tinct cr(;ss-action ;"  so  that  parties  litigant  may  settle  all  ques- 
tions of  difference  between  them,  so  far  as  is  practicable,  in  one 
action,  and  not  litigate  by  piecemeal.  Interminable  litigation 
is  not  favored  by  our  legislature  nor  by  our  courts,  the  deci- 
sions being  numerous  and  pointed  on  this  subject.  It  will  be 
our  purpose,  therefore,  to  consider  the  subject  of  pleadings 
herein;  reserving  the  consideration  of  the  action  for  future 
chapters,  where  the  various  steps  will  be  considered  under  their 
appropriate  heads. 

§  18i.  Facts  Only  must  be  Stated. — In  pleading  under 
the  code,  it  is  the  invariable  rule  that  facts  only  should  be 
stated.  1  The  reasons  for  the  existence  of  these  facts  are  not  to 
be  given,  but  only  the  naked  facts,  dis 'obed  of  any  circumstance 
connected  with  or  pertaining  to  them ;  and  this  without  infer- 
ences or  conclusions,  arguments,  hypothetical  statements,  or 
statements  of  the  law,  or  of  the  pretenses  of  the  opposite  party. 

For  example:  If  A.  is  indebted  to  B.  in  the  sum  of  five  hun- 
dred dollars,  state  the  fact  and  for  what  he  is  indebted ;  if  for 
work  and  labor  done  say  so,  and  aver  what  it  is  reasonably 
worth  if  there  was  no  special  contract,  and  that  the  same  is  due 
and  unpaid,  and  stop  there ;  if  for  goo  Is  sold  and  delivered, 
state  that  fact,  and  when,  where,  and  to  whom  sold,  what  they 
are  worth  and  what  is  due,  and  stop  there ;  if  on  a  promissory 
note,  state  the  amount  of  indebtedness,  and  that  it  is  upon  a 
promissory  note  bearing  date,  etc.  (the  note  is  usually  copied, 
but  not  necessarily  so),  and  that  the  note  has  not  been  paid. 
Of  course,  in  every  case  judgment  must  be  demanded  for  the 
amount  due,  stating  how  much,  and  for  interest  if  any,  and 
costs.  In  the  first  example,  for  "  work  ami  labor  done,"  it  is 
not  in  general  necessary  to  state  how  A,  happened  to  work  for 
B.,  or  how  B.  hai)peue  1  to  employ  A.  Such  and  other  kin- 
dred facts  migljt  become  valuable  in  the  course  of  the  trial  as 
evidence,  but  not  as  averments  in  the  pleading.  In  the  second 
example,  "  for  goods  S')l(l,"  it  is  not  necessary  to  aver  how  tliey 
were  sold,  or  why  they  weie  sold,  nor  anything  further  than  that 
they  were  sold  to  B.  at   his  request  for  so  much  money,   and 

1  f}re»M  V.  Pilmor,  15  Cal.  411;  Hicka  v.  Murray,  43  Id.  515;  1  Vaa  Saatv. 
224;  2  Till.  &  bbear.  8. 


§   185.  PLEAOmaS  IN  GENERAL.  103 

that  B.  has  failed  to  pay  for  them.  Tlie  kind  of  goods  sold, 
and  the  price  and  value  of  each  article,  are  questions  of  evi- 
dence which  need  not  be  stated  in  the  pleading.  In  the  third 
example  it  need  not  be  stated  that  the  note  was  made  for  a 
valuable  consideration,  or  that  it  was  made  for  any  consideration. 
It  is  presumed  to  have  been  made  for  a  consideration,  and  if  it 
was  not  really  so  made  the  defense  will  develop  the  fact.  It 
will  be  seen,  therefore,  that  the  facts  must  be  carefully  distin- 
guished from  the  evidence  of  the  facts,  since  the  latter  pertains 
to  the  trial  and  not  to  the  pleadings.  Argument  is  improper  in 
a  pleading,  and  should  never  be  inserted,^  as  a  good  pleading 
should  be  true,  unambiguous,  consistent,  and  certain  to  a  com- 
mon intent,  as  to  time,  place,  person,  and  quantity,  and  not  re- 
dundant or  argumentative. 2 

§  185.  Conclusions  of  Law  not  to  be  Alleged. — An  alle- 
gation of  a  legal  conclusion  is  one  which  gives  no  fact,  but  matter 
of  law  only. 3  Such  averments  are  not  tolerated  by  our  prac- 
tice ;  the  facts  from  which  the  conclusions  follow  must  be  averred, 
but  not  the  conclusions.  If  such  conclusions  are  averred 
and  denied,  no  issue  is  raised;  if  they  are  not  denied,  they 
are  not  admitted.'*  Examples  and  illustrations  of  allegations 
that  have  been  held  to  be  mere  conclusions  of  law  are  given  in 
the  note.*    Other  instances  might  be  enumerated,  but  we  do  not 

11  Van  Santv.  355 ;  Steph.  PI.  383.  ner;   Kemeys  v.   Richards,  11    Barb. 

«  Boyce  v.  Brown,  7  Barb.  S.  C.  R.  312. 

8'>;  Urcen  v.    Prtlmer,  15    Cal.  414;  Bona  Fide   Holder   and    Owner.— 

Gal  ai^her   v.   Dunlap,  2    Nev.    326;  That  a  party  is  the  holder  and  owner, 

Alderman  v.  French,  1  Pick.    1;  At-  as  of   a  promissory   note:    White  t. 

wood  V.  Caswell,  19  Id.  493;  Austin  Brown,  41  How.  Pr.  282;  but  see  Hol- 

v.P.rker,  13  Id.  222.  stein  v.  liioe.  15  Id.  2. 

*  H  itch  V.  Peet,  23  Barb.  583.  Bound. — Whether  a  carrier  is  bound 
*1  Van  Santv.  244;     1   Whitt.  Pr.  to  know  the   contents  of  a  packaore: 

563;  Levin-Jon  v.   Schwartz,  22    Cal.  Berley  v.  Newton,  10  How.   Pr.   490. 

229;  Lightner  V.  Menzell,  35  Id  452;  That  the  defendant   was  "bound   to 

Citntine  v.  Clark,  41  Birb.  629-;   Me-  repair:"  Casey   v.  Mann.  5   Abb.  Pr. 

Gi  e  V.   Barber,  14  Pick.  212;   White  91.     That  defendant  became,  or  was 

V.  Mali8i>n,  26  N.  Y.   117;  Haight  v.  lawfully  bound  by  the  rendition  of  a 

Child,  34  Barb.  186;  Commercinl  B'k  judgnent  aejainsthim:  People  v.  Su- 

of  liochester  V.    Roche-ter,  41    Barb,  peivisors,  27  Cal.  655 ;  People  v.  Com- 

341;   Butler  V.  Vieje,  44  Id.  166;  Car-  missioners  of  Fort  Edward,  11    How. 

ter  V.  Koezl-  V.  9  Bosw.  583 ;  Campbell  Pr.  89. 

V.  Taylor,  2  West  Coast  liep.  .541.  Contrary    to   Law. — That  the    de- 

*  Arose   out   of  the   Transaction. —  fendants    have  acted  contrary  to  the 
That  an  indebtedness  arose  out  of  the  act  (statute)  is  a  conclusion  of  law: 
transaction    is   a  conclusion   of   law:  Smith  v.  Lock  wood,  13  Barb.  209. 
Brown  V.  Buckingham,  11    Abb.   Pr.  Control  and  Management. — That  & 
387.  defeiidmt,  as  executrix,  controls    and 

Assent. — The  knowledge  and  assent  manages  the  estate  of  the   decpused, 

of  a  parly  is  a  legal  conclusion:  Moore  and  is  responsible  therefor:  Pliinney 

V.    Westervelt,  2  Duer,  69;  1    Bosw,  v.  Phinney,  17  How.  Pr.  197. 
367;  21  N  Y.  108.     So  in  the  case  of        Credit. — That  the  goods  were  pur- 

a  promissory  note  made  by  a  copart-  chased    "  on    credit,"  and    that   thd 


104 


'ANALYSIS  OF  PLEADINGS. 


§    185. 


deem  such  necessary.  If  counsel  were  permitted  to  aver  conclu- 
sions  of  law,  pleadings  might  be  valuable  as  briefs,  but  worth- 
less as  statements  of  facts,  the  latter  being  the  only  object  of 
pleadings. 


"terms  of  credit"  had  not  expired: 
Levinson  v.  Schwartz.  22  Cal.  229. 

Due.  —  That  a  certain  amount  is 
due  upon  a  note:  Frisch  v.  Kaler,  21 
Cal.  71 ;  McKyring  v.  Bull,  16  N.  Y. 
303;  Allen  v.  Patterson,  3  Seld.  480. 

Due  and  Owing.  —  That  a  sum  is 
"due  and  owing:  "  Keteltas  v.  Mey- 
ers, 8  E.  D.  Smith,  83. 

Duly.  —  If  "duly"  has  any  clear 
legal  signification,  it  is  a  question  of 
law  to  be  determined  on  the  facts: 
Graham  v.  Maohado,  6  Duer,  517. 
That  the  plaintiff  was  dulv  appointed 
chamberbiin  was  held  sufficient:  Piatt 
V.  Stout,  14  Abb.  Pr.  178.  That  plain- 
tiff sued  by  a  guardian  duly  appointed, 
if  the  statement  is  deemed  too  gen- 
eral, the  proper  course  is  to  move  to 
makt'  it  definite:  S^r4  v.  Coit,  5  Abb. 
Pr.  482.  Tiirtt  the  trustees  were  duly 
appointed :  Conger  v.  H  >llidav,  3  Edw. 
Ch.  570.  That  the  phuntiff  was  duly 
authorized  to  bring  the  action:  Mvers 
V.  Mitchiido,  6  Abb.  Fr.  193;  14  How. 
Pr.  149.  That  a  meeting  was  duly 
convened  would  imply  that  it  was 
regularly  convened:  People  v.  Wal- 
ker, 23 'Barb.  305;  2  At-b.  Pr.  422. 
That  the  location  was  duly  and  prop- 
erly made  according  to  the  provisions 
of  an  act :  People  v.  Jackson,  24  Cal. 
632. 

Duty.  — That  it  was  or  is  the  "duty" 
of  a  party  to  do  or  forbear  an  act  is  a 
conclusion:  City  of  Buffalo  v.  Hollo- 
wav,  3  Seld.  493 ;  Kex  ▼.  Everett,  8 
B.&C.  114. 

Indebted.  —  That  a  party  is  indebted 
or  remains  indebted:  Curtis  v.  Rich- 
ards, 9  Ctl.  33 ;  Wells  V.  McPike,  21 
Id.  215;  Chamberlain  v.  Kuylor,  2  E. 
D.  Smith,  134;  Hail  v.  Southmayd.  15 
Barb.  32.  Or  became  indebted:  Cal. 
State  Tel.  Co.  v.  Patterson,  1  Nev. 
151;  Lightner  v.  Menzell,  35  Cal. 
452. 

In  Violation.  —  Schenck  v.  Naylor,  2 
Duer,  K78. 

Lawful  Holder,  —  That  one  was  the 
■"law'ui  holder:"  Beach  v.  Gallup,  2 
N.Y.  Code  R.  86;  but  see  Taylor  v. 
>Corbierp,  8  How.  Pr.  387. 

Lawful  Tdle  and  unlawfully  with- 
holds: Lawrence  v.  Wright,  2  Duer, 
674;  see,  however,  Wnlter  v.  Lock- 
x-wood,  23  Barb.  230 ;   Walter  v.  Lock- 


wood,  4   Abb.    Pr.    307;    Ensign   v. 
Sherman,  14  How.  Pr,  439. 

Liable. — That  one  is  "  liable:"  Rex 
V.  Upton-on-Severn,  6  C.  &  P.  133. 

Nearer  of  Kin.  —  That  a  party  is 
•'  nearer  of  kin  :  "  Pub,  Adm'r  v. 
W-iits,  1  Paige,  348. 

Necessary  Supplies.  — That  supplies 
furnished  to  a  vessel  are  necessary: 
The  Gustavia,  Blatchf  &  H.  189. 

Obligation.  —  That  he  had  tailed  to 
fulfill  his  obligations:  Van  Schaack  v. 
Winne,  16  Barb.  95. 

Ordinance  is  Legal.  —  That  an  or- 
dinance passed  by  a  municipal  cor- 
poration is  legal :  People  v.  Supervis- 
ors. 27  Cal.  655. 

Owes.  —  That  the  defendant  owes 
the  plaintiff  the  sum  before  mentioned : 
Millard  v.  Baldwin,  3  Gray.  484;  Cod- 
ding V.  Mansfield,  7  Id.  272;  Hollia 
T.  Richardson,  13  Id.  892. 

Owner. — That  a  party  is  owner: 
Adams  v.  Holley,  12  How.  Pr.  310; 
Thomas  v.  Desmond,  Id.  321  ;  contra, 
Davis  T  Hoppock.  6  Duer,  2'i6;  Wal- 
ter V.  Lock  wood,  23  Ba-  b.  2  3 ;  4  Abb. 
Pr.  307;  McMurray  v.  Gifford.  5  How. 
Pr.  14;  Bentley  v.  Jones,  4  How.  Pr. 
20*. 

Owner  and  Holder.  —  That  plaintiff 
i«  owner  and  holder  of  a  note:  Poor- 
man  v.  Mills,  35  Cal.  118,  approving 
Wedtierspoon  v.  R' gcrs,  32  Cal.5ii9; 
Witherspoon  v.  Van  Dolar,  16  How. 
Pr  2ii6. 

Power  and  Authority.  —  That  a  cor- 
poration had  full  power  and  lawful 
authority  to  do  a  particular  act:  Bmn- 
ham  V.  Mayor  of  San  Juse,  24  CaL 
585. 

Promised  to  Pay. — That  defendant 
pnniised  to  pay,  in  the  common 
counts  in  assumpsit,  is  a  mere  conclu- 
sion of  law  from  the  facts  stated,  and 
need  not  be  averred  under  the  code: 
Wiikins  v.  Slidgers,  22  Cal.  2.32 

Release.  —  That  a  party  "did  exe- 
cute a  release  in  full :  "  Hatch  v.  IVet, 
23  Birb.  575.  "  That  a  settlement 
had  no  reference  to  this  cl.iim,  nor 
WHS  the  same  in  anv  way  released  or 
affected:  "Jones  v.  Piiceiix  Bk.,  4  Seld, 
235. 
Repei  ted  Acknowledgments. — Blood- 
good  v.  Bruen,  4  ^eld.  3(56. 

Right  of  Possession. — That  right  of 


§  186.  PLEADINGS  IN  GENERAL.  105 

§  186.  Dsfendant's  Pretenses,  or  Facts  Anticipating  a 
Defense  — Allegations  in  a  complaint  as  to  the  defendant's 
pretenses  are  improper,  as  they  are  not  the  facts  of  the  plain, 
tiff's  case.i  So,  also,  facts  anticipating  a  defense  ought  never 
to  be  averred.  If  such  an  averment  is  made  in  the  complaint, 
the  defendant  need  not  traverse  it.  What  is  material  in  the 
case  may  be  quite  immaterial  in  the  pleading.  The  complain- 
ant should  not  erect  a  structure,  and,  to  show  its  stability, 
attempt,  but  fail,  in  knocking  it  down.  The  plaintiff  may  be 
■well  aware  of  the  defense  which  will  be  interposed,  but  the  de- 
fendant will  be  quite  as  capable  of  presenting  it  as  the  plaintiff. 
The  real  effect  of  such  pleading,  if  allowed,  would  be  to  put 
the  opposite  party  on  the  stand  as  a  witness,  without  being 
obliged  to  take  his  whole  statement  as  true.^  The  above  is  the 
general  rule,  but  there  are  exceptions ;  such  as  where  the  origi- 
nal indebtedness  is  counted  on,  and  then  the  defense  of  pay- 
ment anticipated  by  allegations  of  matters  of  fraud  in  answer.^ 
An  allegation  that  defendant  was  of  full  age  when  he  executed 
the  bond  is  the  allegation  of  a  fact  in  anticipation  of  a  defense.* 
So  in  New  York  it  has  been  held  that  in  a  complaint  upon  a 
cause  of  action  which  accrued  more  than  six  years  previous   to 

poaseasion  was  forfeited  by  non-com-  were  discontinued  is  a  conclusion  of 

Sliaiice  with  rules  and  customs:  Dutch  law:  Hatch  v.  Peet,  28  Bjirb.  588. 
'lat  V.  Mo'-ney,  12  Cal  484.  Wrongfully  and  Unlaiofully,  whea 

Sole  Oiotier. — That  a  party  is  sole  used  in  connoction  with  i^sunble  lacts, 

owner:  Thomas  V.  Desimoiid,  12  How.  are    surplusas^e,    and    had    better  be 

Pr.   321;   see,   however,  Holstein    v.  omitted:   ^alleclt  v.    Mixer,    16   Cal. 

Rice,  15  Id.  1.  674;  Payne  v.  Tre.idwnll,  Itj  Cal.  220; 

Subject  to  Mortgage. — That  defend-  Lay  v.  Neville,  2i    [d.  545;   People  v. 

ant    took   land  subject  to  mortsjage:  Supervisors  27  Id.  (>)');    Richardson 

Wormouth  v.  Hatch,  33  Cal.  121.  v.  Smith,  29  Id.  52  );  Miles  v.  M.Der- 

TUleto  Money. — That   pluintiff  is  mott,  31  Id.  271 ;  People  ex  rel.  Hjiws 

entitled   to  tl)e  sum  of    money     de-  v.  Wnlker,  2  Abb.  Pr.   421;  FhHcher 

manded:   Drake  V.   Cockrofl,  1  Abb.  v.    Callhrop,    1  New   \Ih<;;.  Cas.  641; 

Pr.  2D3,  Ensia^tiv.  Sherman,  13  How.  Pr.  37; 

Trust.  —  That  by  the   laws  of  the  Kinsey  v.   Wallace.  3t)  Cal.  40^;  and 

state  a  tru<t  was    created:  Throopv.  Feoly  v.  Sliirlev,  43  Id.  3t)9. 
Hatch,  3  Abl>.  Pr.  2-5.  ^  1   Whitt.  Pr.  5^2  ;  Sieph.  PI.  349; 

Undertake  to  Deliver.  — "Thnt  he  Green  v.  Palmar,    15  Cal.  414;  Van 

did  not,  by  hi-i  agreement,  undertake  Ne4  v.  Talmadge,  17  Abb.    Pr.    99; 

to  deliver  the  land   from  all  incum-  Hothum  v.  E.   I.  Comp..  1    T.  R.  638. 
brances:"     Warner    v.   Halfleld,     4        ^  Qoijid'a  pj.  7.5;  (j;,,,(i,.Hy,  Xobias, 

Biackf.  394.  21  C:il.349;    Gre^n  v.  Palmer,  15  Id. 

Unjust  Refusal.  —  That  a  refusal  is  414;  Kerr  v.  Blodgi-tt.  IH  Abb.  Pr.  187 ; 

uniu<t,   is    a   conclusion  of  law:    Re  Giles  v.  Hetz.  15  Id.  285;  Van  Demark 

Prime.  1  Barb.  352.  v.  Van  Demark,  13  How.  Pr.  372. 

Validity.  —  That  a   note  never  bad        *  Brtcke  v.  Wilkinson,  13  How.  Pr. 

any  vnlidilv:  Biirrall    v.    Bowen,  21  102;   see,   also.   Wade   v.    Rii<lier,    4 

How.  Pr.  378.     What  is  the  meaning  Bosw.  537;  and  Thompson  v.  Mmford, 

of  validity  and   effect  of  a   contract?  11  H'W.  Pr.  273. 

Latham  v.  Westervelt.  26  Barb.  256;         *  WaNingham's    Case,   Plow.  564; 

Cbapin  v  Potter,  1  HilU  3i.6,  Bovy's  Case,  1  Vent.  217;   Slowell  v. 

Were  Discontinued.  — That  actions  Zouch,  Plow.  876. 


106 


ANALYSIS  OF  PLEADINGS. 


§  187. 


the  commencement  of  the  suit,  an  allegation,  inserted  for  the 
purpose  of  anticipating  the  defense  of  the  statute  of  limitations, 
that  "  the  defendants  have  not  resided  in  the  state  at  any  time 
within  six  years,"  etc.,  was  irrelevant  and  should  be  stricken 
out.^     But  it  is  otherwise  in  California.^ 

§  187.  Facts  ladspeadeiit  of  the  Cause  of  Action. — 
Facts  independent  of  the  cause  of  action  and  proper  to  the 
affidavit,  accompanying  a  pleading,  as  in  cases  of  arrest,  should 
not  be  alleged. 3  So,  of  facts  in  relation  to  a  contemporaneous 
agreement  in  writing  varying  the  terms  of  a  promissory  note.^ 

§  188.  Implications  and  Presumptions  of  Law. — Where 
the  law  presumes  a  fact,  the  same  need  not  be  stated  in  the 
pleading.5  Thus  matters  of  which  the  court  takes  judicial 
notice  need  not  be  alleged  ;S  or  notice  ex  officio^  as  of  a  public 
statute.'''  But  ordinances  of  a  municipal  corporation  are  not 
judicially  noticed,  and  must  be  alleged.^  Further  illustrations 
of  facts  which  are  presumed,  and  consequently  need  not  be 
alleged,  are  given  in  the  note.' 


»  Buler  V.  Mason,  5  Abb.  Pr.  R.  40. 

a  See  Keller  V.  Hicks,  22  Cal.  4-57; 
Breiinan  v.  Ford.  46  Id.  7;  Caiifleld  v. 
Tobias,  21  Id.  350. 

»  Seilar  v.  Sasje,  12  How.  Pr.  5.31 ; 
13  Id.  280;  Fro-t  v.  M'Carajer,  14  Id. 
131 ;  Secor  v.  Roome,  2  N.  Y.  Code 
R.  1 ;  contra,  Barber  v.  Hubbard,  3 
Id.  156. 

*  Smalley  v.  Bristol,  1  Mann.  (Mich.) 
153. 

M  Chitt.  220;  4  M.  &  8.  120;  2 
Wils.  147;  Steph.on  Pi.  .3.52;  1  Whitt. 
591;  Partriilgo  v.  Badger,  25  Barb. 
146;  Tilestori  v.  Newell,  13  Mmss. 
405;  Dunnine;  v.  Owen,  14  Id.  157; 
McGee  V.  Barber,  14  Pick.  212;  Marsh 
V.  Buiteel,  5  Burn.  &  Aid.  607;  Frets 
V.  Fret?,  1  Cow.  335;  Allen  v.  Wat- 
son, 16  Johns.  205;  Vymor's  Case,  8 
Rep. 81  ;  Bac.  Abr.,  Pleas,  i.  7;  2  Sand. 
805;  Sheers  v.  Brooks.  2  H.  BL  120; 
Hanford  v.  Palmer,  2  Brod.  *  B. 
861;  Wilson  v.  Hobday,  4  M.  *  S. 
125;  Chapman  V.  Pickersgill,  2  Wils. 
147. 

«  Goulett  V.  Cowdrj',  1  Duer,  139. 

M  Sandf.  262;  Stoph.  PI.  345; 
Golet  V.  Cowdrev,  1  Duer,  139. 

8  Harker  v.  Mayor  of  N.  Y..  17 
Wend.  199. 

•  Agency. — That  presentation  of  note 
by  a  bank  was  "as  agents"  ft)r  plaint- 
iff  and  not  as  owners,  is  presumed : 
Farmers'  and  Mechanics'  Bank  of 
Genesee  v.  Wadsworth,  24  N.  Y.  647. 


Consideration. —h.  promissory  note 
imports  a  consideration,  and  in  an  ac- 
tion thereon  none  need  be  alleged: 
Allen  T.  Carpenter,  1  West  Coast 
Kep.  598;  Orr  v.  Hopkins,  Id.  157. 

Death  of  Ancestor. — The  allegation 
that  one  is  heir  of  A.  implies  the 
death  of  A.,  for  nemo  est  haeres  viven- 
tis:  Broom's  Leg.  Max.  393.  Though 
the  term  "heir"  may  denote  heir  ap- 
parent: Lock  wood  V.  .lesup,  9  Conn. 
272 ;  Cox  v.  Beltzhoover.    1 1  Mo.  142. 

Delinery  of  a  specialty. — The  de- 
livery of  a  specialty,  though  essential 
to  its  validity,  need  not  be  stated  in 
a  pleading:  1  Ch.  PI.  364;  Cabell  v. 
Vaiighan,  1  Saund.  291 ;  Chap[)ell  v. 
Bissell,  10  How.  Pr.  274;  12  M.  452; 
Prindlo  v.  Caruthers,  15  N.  Y.  425; 
Ltfayette  Ins.  Co.  v.  Roger*,  30  Barb. 
491. 

Incorporation. — In  New  York,  that 
a  business  corporation  made  and  de- 
livered its  promissory  note,  sufB- 
ciently  states  a  valid  contract.  A 
legal  consideration  may  b<'  presumed : 
Lindsley  v.  Simonds.  2  Abb.  Pr.  (N. 
S.)69;  "^Woedv.  Wellinirton,  30  N.  Y. 
218;  Phoenix  Bank  of  New  York  v. 
Donnell.  41  Barb   571. 

In  Writing. — Averment  of  accept- 
ance implies  "in  writinc:"  Bsmk  of 
Lowville  V.  Edwards,  11  How.  Pr. 
216. 

Jurisdiction. — The  juri-^rliction  of  a 
court  of  record  of  a  sieter  state  will 


§  189. 


PLEADINGS  IN  GENERAU 


107 


§  189.  Material  Averments. — A  material  allegation  in  a 
pleading  is  one  essential  to  the  claim  or  defense,  and  wiiich 
could  not  be  stricken  from  tlie  pleading  witiiout  leaving  it  in- 
sufficient.* There  is  no  question  of  more  importance  to  the 
pleader  than  what  is  and  what  is  not  a  material  allegation ;  or, 
in  other  words,  what  is  necessary  to  be  stated  in  a  pleading, 
and  what  ouglit  to  be  omitted.  In  the  case  of  Green  v.  Palmer, 
15  Cal.  414,  tliis  question  is  elaborately  discussed;  and  the  true 
rule  is  there  laid  down  in  the  clearest  and  most  logical  manner.* 


be  presumed.  It  13  suflSoicnt  to  al- 
leije  thai  iudijmeni  was  diilv  recov- 
end:  Halslead  v  Black,  17  Abb.  Pr. 
227.  So,  also,  <>t  all  courts,  officers, 
and  boards:  Cal.  Code  0.  P.,  sec. 
456. 

Non-payment. — Thnt  defendant  hns 
not  paid  is  implied  in  the  allegation 
that  there  is  due  and  owinj;.  etc.: 
Keteltas  v.  Mevors,  19  N.  Y.  2.«; 
Holeman  v.  DeGray.  6  Abb.  Pr.  79. 
In  the  case  of  Keteltas  v.  Meyers, 
supra,  a  copy  of  the  note  sued  on  wns 
set  out  in  the  complaint,  and  the  fact 
that  the  note  was  due  appeared  there- 
from ;  and  the  complaint,  instead  of 
alleging  triat  so  much  was  unpaid 
thereon,  alleged  that  a  certain  ?um 
(the  amount  of  the  notp)  was  "due 
and  owing  thereon."  Held,  that  it 
was  equivalent  to  an  averment  that 
that  amount  remained  unpaid.  If, 
however,  the  cmplaint  had  simply 
averred  the  making  and  delivery  of 
the  note,  without  stating  when  the 
same  matured,  the  allegation  that  it 
was  "due"  would  be  a  mere  conclu- 
Bion  of  law:  Roberts  v.  Tread  well,  50 
Cal.  o20. 

Offi,  I'll  Capacity  of  executor  is  im- 
plied: Scrantom  v.  Farmers'  and  Me- 
chanics' Bank,  24  N.  Y.  424. 

Ownership. — Possession  of  negotia- 
ble paper  indnrsed  in  blank  by  the 
payee  lliereof,  is  prima  facie  evirlence 
of  ownership :  Bedell  t  Carl).  38  N.  Y. 
581  ;  Brainerd  v.  New  York  &  Harlem 
R  K  Co.,  10  Bosw.  332. 

Promise.  —  In  a  great  many  cases 
wh're  a  h'gil  obiitration  exi-ts,  the 
law  will  imply  a  pnimise.  This  has 
been  stated  to  be  an  inference  or  con- 
clusion of  law  from  the  lei^al  liability: 
G-.uld's  PI.  o30;  but  the  report  in 
Kinder  v.  Paris,  2  H.  Bl.  662,  says, 
that  from  the  antecedent  debt  or  duty, 
the  law  presumes  the  defendant  did 
in  fact  promise  to  pay,  and  Lord 
Holt  is  reported  to  have  said  that 
there  was  no  such  thing  as  promise 


in  law:  Parkins  v.  Wollaston,  6  Mod. 
lil.  So  a  sale  of  goods  or  loan  of 
money  necessarily  implies  a  promise, 
and  a  consideration,  and  a  tuutual 
contract:  See  notes  to  Osborne  v. 
li'igers,  1  Saund.  2'i4 ;  Victor  v.  Da- 
vies,  1  M.  &  VV.  7.38;  Emerv  v.  Pell, 
2  T.  R.  28;  Glenny  v.  Hitchins,  4 
How.  Pr.  9"^.  And  the  law  makes  no 
distinction  between  an  implied  prom- 
ise and  an  express  promise:  Kinder 
V.  Paris,  2  H.  Bl.  o63;  I'hiu  Con.  19. 
See  discussion  on  this  subject  of  pro- 
mise in  Hall  v.  Southmayd,  15  Barb. 
3l-3i>;  see  also  Uropsev  v.  Sweenev, 
27  Id.  310;  Karron  v.  Sherwood,  17 
N.  Y.  2iO;  Berry  v.  Fernandes,  17 
Bing.  338;  Durnford  v.  Messiler,  5 
Mau.  &  S.  446. 

I'ro/ortion  of  Liability  of  Surety. 
The  proportion  that  a  sur.-ly  has  to 

Eavis  implied  :  Van  Denmark  v.  Van 
i.n  nark.  13  How.  Pr.  3".'. 

Public  Offii-.er. — In  a  suit  by  a  pub- 
lic officer  in  his  nameof  offiee,  his  duo 
appniniment  tliereto  is  implifd:  Fow- 
ler V.  Westervelt,  40  Brb.  374. 

Statute. — As  to  impliisations  arising 
in  actions  brought  under  a  statute,  see 
Freemin  v.  Fulton  Fire  Ins.  Co.,  38 
Barb.  247;  W-tshburn  v.  Franklin,  35 
Id.  5!>9;  7  Al.b.  Pr.  8;  .Mer«in  v. 
Hamilton.  6  Duer,  2l8;  Teel  v.  Fonda, 
4  Johns.  304. 

»  Cal.  Code,  sec.  463;  Oregon  Code, 
sec.  93. 

«  In  Green  v.  Palmer,  15  Cal.  414, 
Fie  d,  C.  J.,  formul  lied  the  following 
rules  in  regard  to  pleadings  under  the 
code:  "First  rule.  Facts  only  must 
be  Slated.  Tiiis  means  the  facts  as  con- 
tradistinguished from  the  law,  from 
argument,  from  hypothesis,  and  from 
evidence  of  the  facts.  The  facts  must 
be  carefully  distinguished  from  the 
evidence  of  the  facts.  The  criterion 
to  disiinguish  the  facts  from  the  evi- 
dence is — Second  rule.  Those  facts, 
and  those  alone,  must  be  stated  which 
coubtitute  the    cause  of  actiuu,  tho 


108 


ANALYSIS  OP  PLEADINGS. 


§   190. 


The  following  questions  will  decide  in  most  cases  whether  an 
allegation  be  muterial:  Can  it  be  made  the  subject  of  a  material 
issue? ^  Or,  if  it  be  denied,  will  the  failure  to  prove  it  decide 
the  case  in  whole  or  in  part?^  Such  material  averment  can  not 
be  presumed  from  the  existence  of  other  facts. ^ 

§  190.  Essential  Facts  Only  are  Material.— What  facts 
are  essential  is  sometimes  a  question  which  puzzles  the  pleader, 
yet  it  should  not.  The  following  tests  will  determine  whetlier 
certain  allegations  are  unnecessary:  1.  Can  the  allegations  be 
stricken  from  tiie  pleading  without  leaving  it  insufficient?  2. 
Can  it  be  stricken  from  the  pleading  witliout  impairing  any 
portion  of  the  cause  of  action  or  defense?  3.  Can  it  be  stricken 
from  the  pleading  without  an  injury  to  the  plaintiff  or  a  benefit 


defense,  or  the  reply.  Therefore  (t) 
each  p«i"ty  uiu«t  alli-ge  every  iiii't 
which  he  is  rcquirci  lo  prove,  and 
will  be  prpiluili-d  from  proving  any 
fact  not  alleiijed.  The  plrtintitF,  on 
his  part,  tniisi  allesjH  all  ibnt  he  will 
have  lo  prove  to  niair;tHin  his  action; 
the  de  eKhuit,  on  his  part,  all  thiit  hn 
must  prove  to  de'e-it  the  pluintiff's 
title,  alter  the  complaint  is  adiniltcd 
or  proved.  (2)  He  must  allesie  nothinjij 
atfirniMiively  which  he  is  not  required 
to  prove.  This  is  sometimes  put  in 
the  following  form,  viz. :  '  That  tho~e 
facts,  and  those  only,  should  be  stated 
which  the  parly  would  be  required  to 
prove.'  But  this  is  inaccurate,  since 
negative  allegations  are  frequently 
neces  ary,  and  they  are  not  to  l)e 
proven.  The  rule  applies,  however, 
to  all  affitinativo  allegati(ms,  and, 
thus  applied,  is  universal.  Every 
fact  essential  to  the  claim  or  defense 
should  be  siated.  If  this  part  of  the 
rule  is  violated,  the  adverse  party 
may  d(!niur.  In  the  second  place, 
nothing  should  be  stated  which  is  not 
esseniial  to  the  claim  or  defense;  or, 
in  other  words,  none  but  'issuable' 
facts  should  be  stued.  If  this  part 
of  the  rule  be  violated  the  adverse 
party  may  move  to  strike  oui  the 
unessential  parts.  An  unessential,  or 
what  is  the  same  thing,  an  immaterial 
nlletralion,  is  one  winch  can  be  stricken 
from  the  pleading  without  leaving  it 
insuffi -ient,  and,  ot  course,  need  not 
be  proved  or  disproved.  The  lollow- 
ing  quesiion  will  d't-'rmine  in  every 
case  wiieiher  an  allegaiion  be  mate- 
rial :  ("an  it  be  made  the  subject  of  a 
material  issue?  In  other  words,  if 
deni'd.  will  ihe  failure  to  prove  it 
decide  the  case  in  whole  or  in  part? 


If  it  will  not,  then  the  fact  allesijed  is 
not  material ;  it  is  not  oi.e  of  those 
which  constitute  the  cause  of  action, 
defense,  or  retily."     See   also,  to  the 

81  me  effect,  Drenx  v.  Domec.  18  Cal. 
8S;  Sfnilh  v.  Richmond,  I'.Ul.  4s3; 
B  >\ver«  V.  Aubrey,  22  I  I.  ^Vi'.t;  Gm'W- 
ell  v.Walden,  28  Id  ItiK;  U'Connorv. 
Dinijley,  26  Id.  II  ;  .lohnson  v.  Santa 
Clara  Co.,  28  M.  o47  ;  Larco  v  Casa- 
neuava,  30  M..'ii));  VVill-on  v.  Cleave- 
laiid,  Id.  200;  f.itierson  v.  Ki-vsione 
-M    (;«).,  Id.  o() 4;    KiicoiiillMt  v."  Rene, 

82  Id.  4)1);  .tones  v.  Padunia  City, 
36  Id.  28:!:  .Joseph  v  lioll,  87  Id  2").5; 
Hruck  V.  Tucker,  42  Id  8")]  ;  Ciine  v. 
Cline,  3  Or.  859;  Perkins  v.  Barnes,  8 
>J.v.  56o;  McN^.bb  V.  Wixom,  7  Id. 
172;  Clark  v.  Bales,  1  Dakoia.  42; 
(;iav  Co.  V.  Simon>en.  1  M.  408,  410; 
ScoYt  v.  Robards,  (i7  .Mo.  289;  Dunn 
V.  Remington,  9  Neb.  H2;  lni;ie  v. 
Jones.  43  Iowa.  "-'86;  Louisville,  etc.. 
Canal  Co.  v.  Murphv,  9  Bush.  522; 
I'titfiier  Y.  Krapiel,  28  Iowa,  27;  De 
Griw  V.  Kbnore,  50  N.  Y  1 ;  Pier  v. 
Hcinrichotfen,  52  Mo.  338;  Horn  v. 
Ludington.  28  Wis.  81  ;  Hill  v.  Bar- 
rett, 14  B.  Mon.rt7;  i'eople  v.  Rvder, 
12N.  Y.  4!8;  Rogers  v.  Milwaukee, 
18  Wis.  610;  Bird  v.  .Mayer.  8  Id.  868; 
Groves  v.  Tallman.  8  Nev.  n<;  Wills 
V.  Wills,  34  Ind.  lOii;  Cowin  v.  Too.e, 
Sriowa,  518;  Simpleton  v.  Scott,  11 
Iowa,  589;  Campbell  v.  Taylor,  2 
West  Coast  Rep.  641. 

•Green  v  Palmer,  15  Cal.  414; 
Martin  v.  Kanouse,  2  Abb.  I'r.  380; 
Mussina  v.  CI  irk.  17  Id.  1^8;  Cuhill 
V.  Palmer,  Id.  196. 

*  Green  v.  Palmer,  15  (.al.  414. 

»  I  Van  Santv.  778,  774;  Hall  v. 
Southmavd.  15  Barb.  84.  85;  Van  de 
Sande  v.  Hall,  18  How.  Pr.  458. 


§   191.  PLEADINGS  IN  GENERAL.  109 

to  the  defendant,  however  remote  this  injury  or  "benefit  may 
be?i 

The  essential  facts  only  should  be  averred ;  for,  should  the 
pleadings  be  so  framed  that  even  the  least  important  essential 
fact  is  left  out,  the  cause  of  action  is  impaired.  What  plaintiff 
ought  to  aver  and  what  he  must  prove  are,  we  repeat,  entirely 
distinct  propositions.  If  the  pleader  were  required  to  aver 
every  fact  necessary  to  prove  his  case,  most  pleadings  would  be 
of  great  length.  The  pleadings  should  be  concise  and  to  the 
point.  "There  never  was  a  greater  slander  ui)Oa  the  code  than 
that  it  permits  long  pleadings."  ^  It  is  only  ultimate  facts  that 
are  to  be  alleged,  and  not  the  facts  which  tend  to  prove  or 
establisli  the  existence  of  the  ultimate  facts.  For  example: 
Plaintiff  sues  for  goods  sold  and  delivered ;  defendant  denies 
the  sale  and  delivery.  The  plaintiff  must  then  prove  the  facts 
which  show  the  sale  and  delivery. 

§  i:)l«  Immaterial,  Irrelevant,  and  Redundant  Matter. 
Irrelevant,  immaterial,  unessential,  redundant,  and  surplus 
allegations  should  be  omitted  from  a  pleading. 3  Such  allega- 
tions or  denials  present  no  issue.'*  And  if  such  matter  be  in- 
serted in  a  pleading,  it  may  be  stricken  out  on  mo;  ion  of  any 
person  aggrieved  thereby. ^  Irrelevant  matter  in  a  pleading  is 
that  which  has  no  bearing  on  the  subject-matter  of  the  contro- 
versy.^ Surplusage  is  matter  altogether  superfluous  and  useless, 
and  which  may  be  rejected  by  the  court,  and  the  pleadings 
stand  as  if  it  were  stricken  out  or  had  never  been  inserted.'  Thus, 
a  false  construction  in  law  upon  the  terms  of  a  contract  will  be 
regarded  as  surplusage,  and,  on  motion,  will  be  stricken  out.^ 
Or  superfluous  matter  when  inserted  by  itself.^  So,  when  the 
name  of  the  wife  is  improperly  or  unnecessarily  joined  with  that 
of  her  husband,  it  may  be  regarded  as  surplusage. ^**  So  of  in- 
consistent allegations.  1^    Or  allegations  which  are  absurd,  or  the 

»Van  Santv.  319,  320;Whitwell  v.  «  Fabricotti  v.  Launitz,  1   Code  K. 

Thomas  9Cal.  499;  Green  v.  Palmer,  (N.  S.)  121 ;  Stafford  v.  Mayor  of  Al- 

1.5  Id.  414,  and  cases  cited  in  last  note,  bany,  6  Johns.  1;  Van  Reiii=sala«r  v. 

•Green  v.  Palmer,  15  Cal.  417.  Brice,   4  Paige   Ch.    177;  Perrine  v. 

»  Green  v.  Palmer,  15  Cal.  414.  Farr,  2  Zab.  356;  Lee  Bank  v.  Kitch- 

*1    Van   Santv.    76;  Maretzek  v,  ina;,   11  Abb.  Pr.  436;  Cahill  v.  Pal- 

Caldwell,  19  Abb.  Pr.  35.  mer,  17  Id.  196. 

»  Cal.  Code,  sec.  458 ;  Nevada,  sec.  ^  Gould's  PI.  143. 

67 ;  Idaho,  sec.  67  ;  Arizona,  67  ;  N.  Y.  «  Stoddard  v.  Treadwell,  26  Cal.  294. 

Code,  sec.  160;  Oregon,  sec.  84:  Larco  •  1  Van  Santv.  311 ;  Boles  v.  Cohen, 

V.  Casaneuava,  30  Cal.  660;  Boles  v.  15  Cal.  150. 

Cohen,  15  Id.  150;  Hampshire  Manuf.  ^^  Warner  v.  Steamer  "Uncle  Sam" 

Bank  v.  Billings,  17  Pick.  87 ;  Lord  v.  9  Cal.  697. 

Tyler,  14  Id.  156;   Cahill  v.  Palmer,  "  1  Van  Santv.  363,  519;  Uridias  v. 

17  Abb.  Pr.  196;  Moffatt  v.  Pratt,  12  Morrill,  25  Cal.  31;  Kllnk  v.  Cohen, 

How.  Pr.  48.  13  Id.  623. 


110  ANALYSIS  OF  PLEADINGS.  §   191. 

truth  of  which  is  impossible. *  So  of  allegations  which  are 
redundant,  although  the  facts  averred  are  relevant,  as  by  a 
needless  repetition  even  for  material  averments. ^ 

Any  matter  which  may  tend  to  limit  or  qualify  the  degree  of 
certainty,  is  redundant  matter  or  surplusage ;  for  example,  matter 
of  mere  evidence,  legal  conclusions,  things  within  judicial  notice, 
matter  coming  more  properly  from  the  other  side,  or  matter  ne- 
cessarily implied. 3  Tliough  in  its  more  strict  and  confined  mean- 
ing, redundancy  imports  matters  wholly  foreign  and  irrelevant.^ 

Conclusions  of  law  inserted  in  a  pleading  may  be  considered 
as  mere  surplusage. ^  So  of  evidence  when  inserted  in  a  plead- 
ing.^ Or  probative  facts,  such  as  averments  of  deraignment  of 
title.'     Or  liypothetical  statements. ^ 

Matter  inserted  in  a  pleading  obnoxious  from  uncertainty,  as 
where  the  facts  which  constitutes  the  cause  of  action  is  not 
stated  clearly,  will  be  considered  as  surplusage.^  So  of  matter 
contained  in  a  pleading,  which  is  frivolous.^"  Or  allegations 
ambiguous  or  repugnant  to  each  other.^^  Or  a  commingled  state- 
ment of  two  causes  of  action  that  may  properly  be  united  in 
one  complaint.12  But  such  pleading  may  be  demurred  to  for 
ambiguity  or  uncertainty. ^^  Or  the  names  of  parties  improperly 
joined,  may  be  stricken  out.^* 

But  a  material  allegation  can  not  be  stricken  out,  because 
the  pleader  also  claims  relief  which  can  not  be  granted. ^^  Nor 
where  the  information  required  was   obtainable  by  demand  of 

1  Saoramonto  Co.  v.  Bird,  31  Cal.  6f?.  v.  Palmer,  15  Cal.  414;  Wies  v.  Fan- 

•1    Ch.   PI.    227;  Duiulass  v.  Lord  nins^,    9    Hi>w.    Pr.    643;    Brown    v. 

Wej-mouth,  Cowp.   6t)5;  liarstow  v.  Kii  kman,  12  1(1.313. 

"Wright,  D*>Uij.  Ht)8;  BowniHii  v.  Shel-  •  Arrietta  v.  Morrissey,  1  Abb.  Pr., 

don,  6  Sarul.  660;  R..8t  v.  Harris,   12  N.  S.,  439. 

Abb.  Pr.  446:  BeiK^dict  v.  Seymour,  i"  Smiih  v.  Countryman,  30  N.  Y. 

6  How.  Pr.  303;  Clough  v.  Murray,  655;  Lockwood  v.  Salheiigpr,  18  Abb. 

19Abb.  Pr.  97.                                      -  Pr.  136;  Van  Valen   v.    Laphara,  13 

«  St.'ph.  PI.  423.  How.  Pr.  240. 

*  Stcph  Pi.  422 ;  Barstow  v.  Wright,  "  1  Ch.  PI.  877 ;  1  Van  Santv.  354  ; 
Doug.  667;  1  Saund.  233;  Yates  v.  Com.  Dig.  (C.  23);  Bac.  Abr.,  Pit-as 
Carlisle,  1  BlHck.  270;  Plowd.  Com.  i.  4;  Vin.  Abr.,  Abatement;  Sibley 
232;  Lord  v.  Houston,  11  Eist,  62;  v.  Brown,  4  Pick.  137;  Wyatt  v. 
Cobbett  V.  Cochrance,  8  Bin<r.  17;  Aland,  1  Salk.  3_'4;  Nevill  v.  Soper, 
Bacon  v.  Ashton,  5  Dowl.  94;  Palmer  Id.  213;  Butt's  Case,  7  Rep.  25;  Hut- 
V.  G-ooden.  8  M.  &.  \V.  890;  Stevens  chinson  v.  Jackson, 2  Lut.  1324;  Hart 
V.  Bignlow,  12  ALiss.  438;  Hanipsldre  v.  Longfield,  7  M..d.  148;  Byass  v. 
Man).  Bank  v.   Billings,  17  Pi.k.  87;  Wvlie,  1  C.  M.  &  R.  686. 

Simpson   v.  McArthur,  16   Abb.   Pr.  '*  1    Van   Santv.  344;     Harscn    v. 

802,  note.  Bavaud,  5  Duer,  666. 

6  Halleck  V.  Mixer,  16  Cal.  574.  "  California  Code,  sec.  430. 

•  Green,  V.  Palmer.  15  Cal.  414;  "  Yeates  v.  Walker,  1  DuvaHKy.), 
Bowen  V.  Aubrey,  22  Id.  566.  84. 

^  Lnrco  v.  Casaneuava,  80  Cal.  560;  **  Woodgate  v.  Fleet,  9  Abb.  Pr. 
Wilcon  V.  Cleaveland,  Id.  192.  222, 

*See  antej  1  Van  Santv.  858 ;  Green 


§   193.  PLEADINGS  IN  GENERAL.  Ill 

particulars.^  Nor  to  obtain  details  as  to  contents  of  a  lost  in- 
strumeat,  of  which  the  nature  and  effect  have  been  stated. ^ 

If  the  imraateiial  matter  constitute  part  of  a  material  aver- 
ment, so  that  the  whole  can  not  be  stricken  out  without  destroy- 
ing the  right  of  action  or  defense  of  the  parly,  it  can  not  be 
rejected  as  surplusage,  but  may  be  traversed  in  the  pleading, 
and  must  be  proved  as  laid,  though  the  averment  be  more  par- 
ticular than  need  be.  The  true  rule  is  that  whenever  the  whole 
allegation  can  be  stricken  out  without  affecting  the  legal  right 
set  up  by  the  party,  it  is  iaipertinent,  and  may  be  rejected  as 
surplusage. 3  An  entire  pleading  can  not  be  stricken  out  as 
irrelevant  or  redundant.^ 

§  192.  Only  Such  Facts  as  Constitute  a  Cause  of  Ac- 
tion, Defense,  or  Reply,  must  be  Stated. — As  has  been 
shown  in  preceding  sections,  onl^'^  such  essential  facts  as  con- 
stitute the  cause  of  action,  the  defense,  or  the  reply,  must  be 
stated  in  the  pleading.  Each  party  must  allege  what  he  is  re- 
quired to  prove,  and  he  will  be  precluded  from  proving  any  fact 
essential  to  his  cause  of  action  or  defense  not  alleped,^  In  ad- 
dition to  the  foregoing,  it  is  a  cardinal  rule  of  pleading  under 
the  code,  as  indeed  it  was  at  the  common  law  and  in  equity? 
that  the  allegations  and  proofs  must  correspond,  and  substan- 
tially conform  to  and  sustain  each  other.  Otherwise  there 
would  be  a  variance  which  wo'ild  be  fatal  to  a  recovery.^  But 
an  allegation  in  a  pleading  does  not  estop  the  party  pleading  it 
from  proving  that  the  allegation  is  not  correct,  unless  the  al- 
legation is  made  an  issuable  fact.'     In  pleading,  it  is  the  ultimate 

1  Crockroft  v.    Atlantic  Mut.    Ins.  •  McKinlay  v.  Morrish,  21  How.  T7. 

Co..  9  Bo8W.  681.  S.  343  ;Canipbf'llv.  The  "Uncle  Sam," 

«  Kellogij  V.  Baker,  15  Abb.  Pr.  2<<6.  1  McAll.  77;  Kramme  v.  The  "  New 

»  TJiiitt'd  Stales  v.  Burnham.  1   Ma-  Englanri,"   Newb,  4^1 ;    1  Greenleaf, 

Bon,  57;  VVyman  v.  Fowler,  3  McLean,  18;  1  Whitt.  Pr.  575;    Hioks  v.  Mup- 

467.  ray,   43   Cai.    515.      In    cases    where 

*  Benedict    v.    Dake,    6    H<^w.    Pr,  complaint  was  dffirient,    see  Cowen- 

852;  Nichols  V.  Jones.  Id.   355;  Hill  hoven  v.  Oitv  of  Brooklyn,  38  Barb. 

y.  Smith,  8Id.  2S1;  Howell  v   Km.-k-  9;  Van  Zandt  v.  Miiyor"  of  N.  Y.,  8 

erbrocker  Life  Ins.  Co.,  24  How,   Pr,  Bosw,  875;  Solmsv.  Lias,  IfiAbb.  Pr. 

475;  Blake  v.   Eidred,    18  How,  Pr.  311;    Bailey  v.  Johnson,  1  Daly,  61; 

240.     For     practice     on     remedy    by  Curtiss  v.    .MarshMll,  8  Bosw.  '22.     In 

strikinij  out,  8»'e  Amendments,  vol.  2.  cases  where  answer  was  deficient,  see 

»1  Van  Santv.  774;  1  Ch.  Pi,  214;  Rnvnor  v,  Timerson,    46    Barb    618; 

Green  v.  Palmer,  15  Cal. 414;  VVillson  Allen  v.  Mercantile  Mir.  Ins.  Co.,  48 

v.  Cieaveiand.   30  Id.    192;    Hii-k-<  v.  Barb.  642;   Bruce  v.  Kelley.  89  N.  Y. 

Murray,   43  Id.  522 ;  Freeman  v.  Fill-  (7  J.  &  Sp.)  27 ;  Smith  T.  Smith,  60  N. 

ton  Fire  In.s.  Co.,  38  Barb.  247;  Dol-  Y.  161. 

cher  V.    Fry,   37   Id.  152;    Barn"s  v.  '  Patterson  v.  The  Keystone  Mining 

Quigley.  59  N.  Y.  265 ;  Peck  v.   Hoot,  Co.,    SO  Cal .   360.     As   to   what  is  a 

6  Hun,  547;    De  ker  v,  Saltsmtn,  I  Id.  variance,  when  miterial,  etc.,  see  also 

421;  Hicks  v,  Murray,    43  CaU  615;  Knapp  v.  Roche,  37  N.  Y.  Superior 

Gates  V.  Lane.  44  Id",  892.  Ct.  (6  J.  &  Sp.)  395;  Hauck  v.  Craig* 


112  ANALYSIS  OF  PLEADINGS.  §   193. 

and  not  the  probative  facts  which  should  be  averred,  and  it  is 
error  in  the  court  to  exchide  evidence  offered  to  establish  the 
probative  facts,  although  they  are  not  averred  in  the  pleading.* 
For  example:  title  of  plaintiff  is  an  ultimate  fact  in  ejectment, 
while  the  facts  established  by  plaintiff  going  to  support  such 
title  are  probative  facts.* 

The  expression  "  facts  constituting  a  cause  of  action"  means 
those  facts  which  the  evidence  upon  the  trial  will  prove,  and 
not  the  evidence  required  to  prove  their  existence. ^  They  have 
been  variously  called  physical  facts, ^  or  issuable  facts, ^  or  real, 
traversable  facts.*  As  before  stated,  facts  and  not  evidence 
should  be  alleged.  In  other  words,  it  is  not  necessary  in  alleg- 
ing a  fact  to  state  such  circumstances  as  merely  tend  to  prove  the 
truth  of  the  fact."'' 

§  193.  What  should  be  Omitted.— Nothing  should  be 
alleged  affirmatively  which  is  not  required  to  be  proved.®  For  it 
is  the  intention  of  the  code  to  require  the  pleadings  to  be  so 
framed  as  not  only  to  apprise  the  parties  of  the  facts  to  be 
proved,  but  to  narrow  the  proofs  on  the  trial, ^  the  rule  being  that 
the  allegations  and  the  proofs  must  correspond. ^^  And  alle- 
gations merely  formal,  i.  e.,  such  as  require  no  proof  at  the  trial, 
are  un necessary. ^^  And  this  is  the  reason  why  it  is  not 
necessary  to  aver  that  a  note  was  given  for  a  "  valuable  consid- 
eration," or,  in  an  action  for  damages  for  assault  and  battery, 
that  A.  "  wrongfully  and  unlawfully  "  beat  B.,  or,  in  an  action 
for  libel,  for  a  publication  which  is  libelous  per  se,  that  it  was  pub- 
lished "  falsely  and  maliciously ;  "  for  it  was  of  course  false,  or 
it  would  not  be  libelous,  and  malice  will  be  presumed  when  the 
falsehood    is    shown.     But  where    a    consideration   is  not  ira- 

heaH,  4  Hun.  661;  Sugsdorf  V.Schmidt,  Le/^.  Obs.  281;  Carter  v.  Koezley,  14 

56 N.  Y.  819;  liovtitoti  v.  Boynton.  43  Abb.  Pr.  150;  Cahill  v.    Palmer,    17 

Howard,  380;   Beard  v.  Yates,  2  Hun,  Id.   196. 

466;  Dcgraw  v.  Elmore,  50  N.  Y.  1;  *  Lawrence  v.  "Wright,  2  Duer,  674; 

Dudley  V.   Scranton,   57   N.  Y.   424;  see  Drake  v.  Cockroft,  1  Abb.  Pr.  203. 

Barnes  v.  Quisijley,  -59  N.  Y.  265;  Cat.  »  Gieen  v.  Palmer,  15  Cal.  416. 

Code  C.  P.,  8608.469-471 ;  Farnsworth  •  Mann  v.  Morewood,  5  Sandf.  557. 

V.Holdermaii,  3  \V(-st  Coast  Rfip.  342;  »  Steph.  PI.  342. 

State  V.  Roe,  lid.  502 ;  Orr  v.  Hop-  "Green  v.    Palmer,   15    Cal.   414; 

kins.  Id.  157.  Decker  v.    Nfathews,     2   Kern.    320; 

»Grewell  v.  Walden,   23  Cal.  165;  Bank  of  U.  S.  v.  Smith,   11  Wheat. 

Moore  V.  Murdock,  26  Cal.  514;  Miles  171 ;  Haskell  v.  Village  of  Penn  Yan, 

V.  McDermot,   31    Id.  271 ;   Depuy  v.  SLans.  43. 

Williams.   26   Id.   313;    Marshall   v.  »  Piercy  v.  Sabin,  10  Cal.  22. 

Shafter,  32Id.  176;  Soev.  Cox,  16  Mo.  »»  Maynard  v.   F,  F.   Ins.    Co.,    84 

166:  Sanders  v.  Anderson,  21  Id.  402.  Cal.  48. 

*  Marshall  v.  Shafter,  32  Cal.  176.  "  Ensign  v.  Sherman,   14  How.  Pr. 

•Wooden   v.  Strew,    10   How.   Pr.  439;  BisrgerstaflF  v.    Briggs,    3   West 

60|  Dow8    V.    Hotuhkiss,    10   N.  Y.  Coast  Kejp.  858. 


S   195.  PLEADINGS  IN  GENERAL.  113 

plied,  or  a  request  is  essential  to  the  defendant's  liability,  it 
must  be  specially  averred  in  the  pleading.^ 

The  only  exception  to  this  rule  is  to  negative  a  possible  per- 
formance of  the  obligation  which  is  the  basis  of  the  action,  or 
to  negative  an  inference  from  an  act  which  is  in  itse  f  indiffor- 
cnt,^  What  is  inserted  in  a  pleading  must  be  decisive  of  some 
part  of  the  cause,  one  way  or  the  other. 

§  194.  Mode  of  Stating  Facts. — The  facts  in  a  pleading 
should  be  stated:  1.  In  their  logical  order;  2.  By  direct  aver- 
ment;  3.  In  ordinary  and  concise  language;  4.  With  reason- 
able certainty.  These  several  rules  will  be  considered  in  the 
order  in  which  they  are  mentioned. 

§  195.  Facts  should  be  Stated  Logically. — By  "  logical 
order"  is  meant  "  natural  order."  '  It  is  laid  down  as  an  essen- 
tial prerequisite  that  logical  order  should  be  obs  rved  in  the 
statement  of  facts  in  the  pleading.^  The  California  code,  section 
426,  provides  that  the  complaint  shall  contain  "  a  statement  of 
the  facts  constituting  the  cause  of  action  in  ordinary  and  concise 
language."  It  may  be  observed  that,  in  erecting  a  building,  the 
ai'chitect  does  not  commence  at  the  top,  but  at  the  base,  placing 
each  part  of  his  foundation  in  its  proper  position,  in  such  a  man- 
ner that  it  may  not  have  to  be  removed  or  reconstructed.  So, 
in  framing  a  pleading  it  must  be  remembered  that  we  are  making 
a  statement  of  certain  facts  which  we  relate  in  the  order  of  their 
occurrence,  and  the  complete  narration  must  bo  made  in  concise 
language  and  with  sufficient  certainty,  tluis  constituting  the 
superstructure  of  the  entire  transaction.  Should  we  commence 
at  the  wrong  end  of  the  story,  we  would  be  building  without  a 
foundation,  and  the  pleading  would  be  unintelligible';  or  sliould 
we  relate  only  the  latter  part  of  the  transaction,  however  just  or 
plausible  might  be  our  statements,  still  we  would  not  have  stated 
a  cause  of  action,  for  tliere  would  not  be  a  complete  and  con- 
nected statement  of  the  transaction. 

It  has  been  held  that  facts  should  be  stated  according  to  their 
legal  effect.^     But  autliorities  in  states  having  a  code  are  quite 

iSppftr  V.  Downing,    12    Abb.  Pr.  Dou*.  667;2Salk.  574;  1  L<].  R.»ym. 

437;  Orrv.    Hopkins',  1  We-it   Oast  400;     Liwcs  Pi.    6J;    1    T.    R.    446; 

Rf  p.  157;  Aldenv.  Carpenter,  Id.  5'.)S.  Steph.   Pi.  3S9;     Bovce  v.   F5rown,  7 

2  Green    v.    Prtlmer,  15    Cal.    411;  B;irb.   85;    Puttison  "v.  Trtvlor.  1    N. 

Pavne  v.  Treadwdl,  U  Id.  244.  Y.  Code  li.  175;  8  Birb.  250;   I).. liner 

s'Groen  v.  Palmer,  15  Cal.  414.  v.  Gibson,  3  N.  Y.  Code  R.  15?;  Coe- 

*  1  Ch.   PI.  231;  Gould'8   PI.  4;  2  gill  v.  Amer.  Ex.  Bank,  1  CoMist.  117; 

Till.  &  Shear.  8.  Stewart  v.  TrMvis,  10  How.  Pr.    1-53; 

'Gould's    PI.  145;  Bac.  Abr.,  i.  7;  Bennett  v.  Ju-ison.    21   N.    Y.    240; 

Co.  Litt,    193;    Com.   Dicf.    PI.  37;  2  Barker  v.  Lad-,  4  Mod.  150;  Ilowetl 

Saund.  96  ;  Cowp.  600;  Cro.  Eliz.  352 ;  T.  Richards,  11  East,  633. 
ESTBB,  Vol.  1—8 


114  ANALYSIS  OF  PLEADINGS.  §   195. 

as  numerous  the  other  way.  In  some  cases  it  has  been  held  that 
facts  should  be  stated  as  they  actually  occurred  or  exist.^  In 
other  cases  it  is  held  that  facts  may  be  alleged  either  way.  Thus, 
It  seems  that  an  act  done  by  an  a^ent  may  be  alleged  as  the  act 
'Of  the  principal,  which  is  the  legal  effect  of  the  fact,  or  it  may  be 
:alleged  as  the  act  of  the  agent,  done  as  agent  of  the  principal.' 

It  is  evident,  however,  that  pleading  facts  according  to  their 
legal  effect  is,  in  most  cases,  necessary  to  conciseness,  which  is 
one  of  the  requirements  of  code  pleading,  and  is  not,  we  think, 
in  conflict  with  any  of  the  requirements  of  the  code.  The  rule, 
it  is  true,  has  more  special  application  to  deeds  and  other  writ- 
ings, but  is  not  restricted  to  them ;  but,  under  some  circum- 
stances, may  extend  to  all  matters  and  transactions  which  a 
party  may  be  required  to  allege  in  pleading;  as  where  a  fact 
necessarily  embraced  or  implied  certain  other  facts  which  were 
but  the  evidences  of  the  material  fact,  it  is  suffleient  to  allege 
the  legal  or  material  fact.^  This  rule,  indeed,  in  many  cases, 
'Can  scarcely  be  distinguished  from  that  which  requires  ultimate 
facts  to  be  stated  and  not  the  evidence  of  them.  Take,  for  ex- 
ample, an  action  for  personal  injury  resulting  from  negligence; 
it  was  and  still  is  sufficient  for  the  plaintiff  to  allege  in  general 
terms  that  tlie  injury  complained  of  was  occasioned  by  the  care- 
lessness and  negligence  of  the  defendant,  without  stating  the 
circumstances,  in  order  to  show  that  it  was  occasioned  by  neg- 
ligence.^ But  care  must  be  taken  not  to  confound  pleading 
facts  according  to  their  legal  eff&ct,  and  pleading  mere  conclu- 
«ions  of  law ;  the  one  is  still  a  fact,  while  the  other  is  not 

The  converse  of  the  rule  above  stated  is  equally  true.*  In 
one  case  the  court  said:  "  But  facts  are  not  to  be,  or  at  least 
need  not  be,  separated  entirely  from  the  law  by -the  pleader; 
nor  could  they  be  without  great  and  most  damaging  prolixity. 
In  this,  as  well  as  in  most  things,  theory  and  practice  are  com- 
pelled to  meet  each  other  half  way  for  the  sake  of  attainable 
good.  The  last  analysis  between  fact  and  law  is  usually  made 
hj  th^  judge  at  the  trial."* 

»Ivesv.  Humphrevs,!  E.  D.  Smith,  *  Cliilea  ▼.  Drake,  2  Mfltc.   fKy.) 

196;  Loe  V.  Aiii8loe,"4  Abb.  Pr.  4')3;  H^;  Kouatz  v.   Ilrown,    16  B.  Mon. 

Smith  V.  I.elmid.   2  IJuer,  609;    Far-  682;  2  Oh.  PI.  650. 

ron  V.  Shnrw()()d,  17  N.  Y.  227,  and  '  Cochran  v.  Goodman,  3  Cal.  244; 

man V  other  ca-es.  Stoddard  v.    Treadwell,   2^5   Id,   294; 

*  S«'e  Bennett  v.  Judson.  21  N.  Y.  see  also  Dambmann  v.  White,  48  Id. 
240:  Dollnerv.  G.bson,  3  Code  li.  l-)3;  450. 

Barnev  V.  Worthington,   4  Abb.,  N,        •  Nudd  v.  Thompson,  34   Cal.  47; 
S.,  205.  and  see  Newman's  Pi.  &  Pr,  207. 

*  See  Sbaw  v.Jayne,  4  How.  Pr.  119, 


§   197.  PLEADINGS  IN  GENEBAL.  115 

§  196.    Facts  muat  be  Alleged  by  Direct  Averment. 

It  is  the  rule,  both  at  common  law  and  under  the  code,  that 
facts  must  be  alleged  by  direct  averment,  and  that  an  averment 
is  a  positive  statement  of  a  fact,  as  opposed  to  argument,  or  in- 
ference,^  or  recital. 2 

For  instance,  it  is  not  an  averment  that  a  certain  house  in 
San  Francisco,  known  as  the  "Willows,"  is  a  hotel,  if  it  is 
stated  tlms:  that  "  certain  furniture  was  furnished  for  and  used 
in  the  furnishing  of  the  hotel  in  the  city  and  county  of  San 
Francisco  known  as  the  'Willows.*  "^  Justice  Sanderson,  in 
the  case  referred  to,  disposes  of  the  complaint  by  saying:  "It 
was  not  an  allegation  that  the  goods  were  used  in  a  hotel,  or 
used  in  a  building  called  the  'Willows,'  or  that  such  building 
was  a  hotel;  these  facts  were  only  stated  inferentially."  All 
essential  facts  must  be  stated  directly  in  unequivocal  language, 
and  not  left  to  be  inferred.* 

One  of  the  reasons  why  all  essential  facts  should  be  averred 
directly  and  unequivocally  is  obvious  when  we  consider  that  if 
the  language  of  a  pleading  is  doubtful,  it  is  construed  most 
strongly  against  the  pleader.^ 

Especially  must  the  facts  be  positively  alleged  to  entitle  the 
plaintiff  to  an  injunction  founded  on  the  allegations  of  his  com- 
plaint.* But  allegations  on  information  and  belief  are  allowa- 
able;'''  but  to  authorize  an  injunction,  the  facts  stated  on  in- 
formation or  belief  must  be  supported  by  the  affidavit  of  one  or 
more  who  can  testify  to  such  facts  from  personal  knowledge. 
And  to  state  the  nature  and  source  of  the  information  does  not 
vitiate  an  independent  averment  of  snch  facts.* 

§  197.  Factsmustbe  Alleged  in  Ordinary  and  Concise 
Language. —  As  pleading  is  but  a  narration  of  the  events  which 
constitute  the  wrong  suffered,  and  a  de  nial  of  the  same  or  ad-^ 
mission  thereof  by  a  different  statement,  these  statements  must 
be  made  in  ordinary  and   concise  language;^     that  is,  in  just 

M  Ch.  PL   319:  Cowp.   683;  Bac  »  Moore  v.  Besse,  80  Cal.  570;    1 

Ab.  Pleas,  B.  Whitl.  678. 

»  Stoph.  PI.  887;  Bac.  Abr.  Ploas,  «  Crocker  v.  Baker,  8  Abb.  Pr.  182; 

B. ;  Gould's  PI    5.5;  Co.   Lit    80:5;   1  Levy    v.    Lav,  6  II.    90;  Rnteau   v. 

Ch.  Pi.  231;  Cowp.  683;   S'im  er   v,  Bernard,  12  H..w.  Pr.  464. 

Bear  River,  4  Cal.   294;    Denver  v.  '  St..I.)liits  v.  Beers,24  Hnw.  Pr.  877; 

Burton,  28  Id.  549;  StrinjriM-  v.  iJivis,  Howdl  v.  Fraser.  1  N.  Y.  Code  R.  270. 

80  Id.  318;  Campt)ell  v.  .lones.  38  Id.  «  Burrowe  v.  Millbank,  6  Abb.  Pr. 

607 ;  Gates  V.  Lane,  44  Id.  39i  ;  W.^st  28. 

V.   American   Exch     Bunk,  44   Barb.  •  1  Van  Santv.  85 ;  Rey  v.  Simpson, 

175;  Truscott  V.   Dole,   7   Row.   Pr.  22  How.  U.  S.  341 ;  Green  v.  Palmer, 

221.  15  Cal.  414;  De  Witt  v.  Havs  2  Id. 

»  Stringer  v.  Davis,  .30  Cal.  320.  468;  .lones  v.  Steamer  "  Corti-z,"  17 

*  Moore  V.  Besae,  30  Cul.  572.  Id.  487 ;  Smith  v.  Ruwe,  4  Id.  6. 


116  ANALYSIS  OP  PLEADINGS.  §    198. 

BUC'h  language  as  men  use  in  convcyins:  the  knowlcdije  of  simi- 
lar facts  to  one  another.  The  provision  of  the  code  in  this  re- 
spect is  only  declaratory  of  the  corninon  law.^  Under  our  stat- 
ute, there  are  no  words  which  have  one  meaning  in  a  pleading 
filed  in  an  action,  and  another  meanins:  wi)pn  used  in  comtnon 
conveisation.  It  was  stated  by  Lord  Mansfield  that  "'  the  sub- 
stantial rules  of  pleading  were  founded  in  strong  sense  and  the 
soundest  and  closest  logic."  In  a  pleailing  under  our  statute 
this  remark  is  eminently  applicable.  If  the  pleader  would  but 
tell  the  story  of  his  client's  wrongs  upon  paper  as  he  would  in 
private  conversation,  very  few  of  his  pleadings  would  be  demur- 
rable. For  instance,  A.  meets  B.  and  says:  **C.  is  indebted  to 
me  in  the  sum  of  one  thousand  dollars."  B.  asks:  "  What  for?" 
When  A.  answers:  "  For  goods  I  sold  him  in  January  last;  and 
I  have  just  demanded  payment,  and  he  has  refused  to  pay  me." 
Here  we  have  the  whole  story  of  A.'s  wrongs,  and  if  he  should 
make  a  complaint  spread  over  many  pages,  no  further  facta 
could  be  presented,  because  they  do  not  exist. 

§  198.  Facts  mast  bs  Alleged  with  Sufficient  Cer- 
tainty.— ^The  matter  pleaded  must  be  clearly  and  distinctly 
stated,"'^  so  that  the  pleadings  may  be  understood  by  the  party 
who  is  to  answer  them.^  The  certainty  required  in  pleading 
relates  chiefly  to  time,  place,  person,  and  subject-matter.^ 
Facts  must  be  stated  with  absolute  deflniteness,  and  nothing 
should  be  left  for  inference.* 

All  ambiguity  must  be  avoided,  as  well  as  language  of  doubt- 
ful, vague,  or  uncertain  meaning.*  But  mere  vagueness  is  not 
frivolousness,  and  is  to  be  corrected  by  amendment.*^  Nor,  as 
before  remarked,  should  such  allegations  of  fact  be  stated  argu- 
mentatively.^  Nor  in  the  alternative.^  Nor  by  hypothesis. 
Such  statements  are  improper,  for  the  court  has  to  deal  with 
the  facts  in  the  case,  and  not  with  hypothesis.^"  But  denials 
must  in  many  cases  be  hypothetical. ^^ 

If  time  is  material  to  constitute  a  cause  of  action,  it  should 

1  Gladwin  v.  Stebbins,  2  Oal.  105.  »  Kelly  v.  Barnett,  16  How.  Pr.  135. 

*  Gould's  PI.  72.  «  Steph.    PI.    178,    383 ;    Austin    v. 

8  1  Chit.  Pi.  283.  Parker,  13  Pick .  222. 

«  Gould's  PI.  77;  Steph.  PI.  279.  »  Staph.  PI.  386;   Stone  v.  Gravps, 

»  Moore  v.  Besse,  30  ChI.  670;    Peo-  8  Mo.  148;  Suiters  v.  Genin,   10  Abb. 

plft  V.  Supervisors  of  Ulster,  34  N.  Y.  Pr.  478. 

268;  Ferguson  v.  Harwood,  7  Cranch,  "  Steph.  PI.  386;  Green  v.  Palmer, 

408.  16  Cal.  414 ;  Wies  v.  Fanning,  9  How. 

6  1  Ch.  PI.  236;   Steph.    PL    378s  Pr.  543. 

Beach  v.  Bay  State  Co.,  10  Abb.  Pr.  "  Brown  v.  Ryckman,  12  How.  Pr. 

71  ;  Christy  v.  Scott,  14  How.  U.  S.  318. 
282. 


§   199.  PLEADINGS  IN  GENERAL.  llf 

be  alleged  with  sufficient  certainty.*  The  day  on  which  it  is 
alleged  in  the  pleading  under  a  videlicet,  that  an  act  is  done,  is 
usually,  however,  immaterial.*  By  "not  material"  in  this  con- 
nection is  meant  it  may  be  departed  from  in  the  evidence. ^ 
When  it  is  an  essential  point,  the  place  at  which  the  contract 
was  made  must  be  alleged.'*  To  make  a  pleading  which  is  bad 
in  these  respects  definite  and  certain,  the  remedy  is  by  motion.  ^ 

§  199.  Pleadings,  Hdw  Construed. — It  will  be  observed, 
by  what  we  have  before  said,  that  it  is  not  claimed  that  our  code 
more  than  points  out  and  defines  certain  landmarks  by  which 
the  pleader  may  be  guided.  The  rules  of  the  common  law  and 
the  decisions  of  the  courts  should  still  be  consulted  when  a 
question  of  the  sufficiency  of  a  pleading  arises.  And  all  ques- 
tions pertaining  to  the  common  rules  of  pleading,  not  expressly 
directed  by  statute,  remain  unchanged.  But  the  code  of  Cali- 
fornia, sec.  421,  provides:  "That  all  forms  of  pleadings  in 
civil  actions,  and  the  rules  by  which  the  sufficiency  of  plead- 
ings is  determined,  shall  be  those  prescribed  in  this  code." 

In  the  construction  of  a  pleading  for  the  purpose  of  deter- 
mining its  effect,  the  allegations  shall  be  liberally  construed, 
with  a  view  to  substantial  justice  between  tlie  parties.^  And 
with  greater  liberality  when  parties  go  to  trial  on  an  issue  of 
fact  than  when  tested  on  demurrer.'     As  used  in  this  connec- 

i  People  V.  Ryder,  2  Kern.  (12  N.  v.  Eldrerlsrp,  29  Id.  809;  Stockwell  v. 
Y.)4h9.  AVaiier,  oO  Id.  271  ;  but  see  liurke  v. 

*  Lester  V.    .lewett,   1     Kprn.   460;     Thurne,  44  BarW.  363. 

Lyon  V.  Cl;nk,4  Seld.  148;  Dubois  V.  '  While  v.  Spencer,  14  N.  Y.  247; 

iieaver,  25  N.  Y.  123.  St.  John  v.   Northnip,  23  B.trb.    26; 

8  Andrews  v.  Chadbourne,  19  Barb.  Cadv  v.  Allen,  22  Id.  391;    Bennett  v. 

147  Jiidsoii.  21  N.  Y.  288.     Or  on  moiion: 

*  See  Thatcher  V.  Morris  1  Kern.  Wall  v.  Buffalo  Wat.  Works  18  Id. 
440;  also,  Vermilya  V.  Beatty,  6  Barb,  119;  Louii.«bury  v.  Purdy,  Id.  515; 
429;  Beach  V.  Bay  State  to.^  10  Abb.  Bank  of  Havana  v.  Mnirce,  20  Id. 
Pr  71.  355.     In  Farnsworth   v.   H'>lderni.in, 

•People  V.   Rvdor,   2  Korn.    439;  8  West   Coa-t    R.'p,  342,   the    court 

Simmons  V.   Eldrid{i;e.    29  How.  Fr.  thus  stated  this  rule:  "  The  contract 

809;  Nash.  v.    Brown,   18  Law  Jour,  ottered   and  read  in   evidence   by  the 

Rep.  N.  S.,  ()2;  Payne  v.  Banner,  15  plainiitf  wis  meageily  set  forth  iti  the 

Id.  227;  Mar-hMll    v.   Powell,  8  Ltw  complaint;    and  it  is  quite   clear  that 

Times  (2  B.)  159;  and    13  Jurist,  126.  under  the  common-law  rules  of  plead- 

For  remedy  by  motion,   see  vul.    ii.,  inaj  it  could  not  properly  have  b'-en 

Notices.  Motions,  and  Oiders.  admitted  in  evidence;  as    under  that 

*  California  Code,  sec.  452;  Nevada  system,  justice  between  the  parties 
Code.  sec. 70;  Idaho,  sec.  70;  Ariz'Mia,  was  often  secondary  to  a  suictly 
sec.  70:  N.  Y.  Code,  sec.  159;  1  Van  technical  adherence  to  the  doctrine 
Santv.  775;  1  WhitU  Pr.  596;  Allen  that  'the  pi  oofs  must  correspond 
V.  Patterson,  7  N.  Y.  476;  Simmons  with  the  alieejations.'  But  recenf 
V.  Sisson.  26  Id.  264;  Blackmer  v.  statutes  have  displaced  this  system 
Thomas,  28  Id.  67;  Yertore  v.  Wis-  of  technicalities,  and  introduced  more 
well,  16  How.  Pr.  8;  Marshall  v.  equitable  rules,  requirinir  the  alh  ga- 
Shafter,  32  Cil.  176;  Butterworth  v.  tions  of  pleading*  to  be  liberally 
O'Brien,  24  How.  Pr.  43b:  bimmuus  construed,  wiih  a  view  to  substantial 


118 


ANALYSIS  OP  PLEADINGS. 


§    199. 


tion,  substantial  justice  means  substantial  legal  justice,  to  be 
ascertained  and  determined  by  fixed  rules  and  positive  statutes. ^ 
Tiiat  allegations  should  be  liberally  construed  does  not  mean 
that  the  o  nission  of  substantial  averments  should  be  disre- 
garded;^ since  the  law  will  not  assume  anything  in  favor  of  a 
party,  which  he  has  not  averred. ^ 

Words  used  in  a  pleading  should  ordinarily  be  construed  in 
their  popular  sense.*  Various  examples  of  the  meanings  which 
have  been  given  to  certaia  words  and  phrases  in  common  use  in 
pleadings  are  given  in  the  note.* 


justice  between  the  parties.  It  is 
suiIicieMt  if  the  complaint  contain,  in 
ordinary  and  concise  language  and 
reasonable  certainty,  allei^allons  of 
such  oonslilutive  tacts  as  will  entitle 
the  plaintitf  to  prove  and  maintain 
his  case,  and  give  the  defendant  op- 
portuiiiiy  to  meet  and  controvert  the 
alleijed  fads  relied  upon  by  the 
plaintiff.  To  ignore  this  express  com- 
mand of  the  statutes  by  an  adher- 
ence to  the  system  which  they  were 
iniended  lo  abrogate,  would  be  a 
wanion  n^^glect  of  a  plain  rule  of  law 
and  duly." 

1  Stevens  V.  Ross,  1  Cal.  95. 

«  Kcenig  v.  Noit.  2  Hilt.  825;  Spear 
V.  Downing,  34  Barb.  623;  12  Abb. 
Pr.  487. 

•  Cruger  v.  Hudson  River  R.  R.  Co., 
2  Kerr.:  201. 

M  Ciiiu  288;  B'lokus  v.  Richard- 
son, 5.Johns.  47fi;  Woodberry  v.  Sack- 
rider,  2  Abb.  Pr.  405;  Minn  v.  More- 
wood,  5  Sand.  557 ;  Woolnoth  v. 
Meadows,  6  E  ist,  463;  Itoberls  v. 
Camden,  9  Id.  93;  liespnblica  v.  De 
Longchiimps,  1  Dall.  Ill;  Rue  v. 
Milcbeil,  2  Id.  59;  Brown  v.  Lam- 
berton,  2  IMimey,  37;  Pelton  v.  Ward, 
8  Caines,  76.  The  subject  is  fully 
discussed  in  Walton  v.  Singleton,  7 
Serg.  &K.449. 

'  Acceptance  implies  a  due  accept- 
ance: GrMhiim  v.  Niai-hado,6Diier,514: 
Bk.  of  Lowvillev.  Edwards,  11  How. 
Pr.  216.  Allegation  that  certain  drafts 
were  accepted  by  a  corporation,  by 
their  treasurer  includes  an  averment 
of  authority  in  the  treasurer  to  accept: 
Parlridi^e  v.  Badijer,  25  B  irb.  146. 

Conti'iuance  of  Oionership  will  be 
presumed  where  the  alU'g  it  ion  states 
ownership  on  a  certain  dtv  :  Van  Rens- 
selaer V,  iionesteel,  24  Barb.  366. 

Vonaersion  implies  a  wrongful  con- 
version :  Ytiung  V.  Cooper,  20  Law 
Jour.  K.   Ex.  186;  6  Ex.62 

DeUoery. —  AUegatiuns  uf  making  a 


written  instrument  imply  delivery:  1 
Chit.  PI.  364;  citing  Peet-*  v.  Bratt, 
6Barb.  61J;  Prindle  v.  Carulhers,  15 
M .  Y.  426 ;  Ltifayette  Ins.  Co.  v.  Ruuers, 
80  Barb.  491. 

Entry  on  lands  means  lawful  entry: 
Turner  v.  McCarthy,  4  E.  D.  Smith, 
248. 

Indorsed  means  lawfully  indorsed : 
Mechanics'  Bank  Assn  v.  Sfiring  Val. 
Shot  Co..  25  Barb.  419;  Price  v.  Mc- 
Clave,  6  Duer,  544;  Bunk  of  Geneva 
y.  Gulick,  8  How.  Pr.  61.  And  in- 
cludes delivery:  Bank  of  Lowville  v. 
Edwards  11  How.  Pr.  216. 

Leane  in  Writing. —  A  lease  said  to 
be  in  writing  must  be  taken  to  be  a 
parol  lease:  Vernara  v.  Smith,  16  N. 
v.  332.  And  an  agreement  for  quiet 
enjoyment  is  implied  from  its  terms: 
Mayor  of  New  York  v.  Mabie,  3  Kern. 
151  :  Tone  y.  Brace,  11  Paige,  566. 

Nrghgence.  — Negligence  include! 
gross  as  well  as  ordinary  negligence: 
Nolton  y.  West  R.  R.  Corp.,  15  N.  Y. 
4'0;  Edgertoh  y.  New  York  and  Har. 
R.  R.  Co.,  35  Barb.  889. 

No  Award  implies  no  valid  award: 
Dresser  y.  Stansfield,  14  M.&  W.822; 
and  "  no  memorial,"  no  valid  memo- 
rial :  Hickes  v.  Cracknell,  8  Id.  77. 

Ovfr/  ayment  means  an  overpay- 
ment in  money:  Maun  y.  Morewood, 
6  Sandf.  5o7. 

Possession  implies  legal  possession: 
23  Ind.  548. 

Signed  means  made,  when  applied 
to  a  promissory  note:  Price  v.  Mc- 
Clave,  6  Duer,  "644;  Bank  of  Geneva 
y.  Gulick,  8  How.  Pr.  51. 

Subucri/dion  to  Stock. — That  the  de- 
fendants sub.xcribed  to  so  many  shares 
of  stoik  im|>lies  that  they  were  the 
owners  of  and  entitled  to  those  shares : 
0<wego  and  Syracuse  PI.  Rd.  Co,  v. 
Rust.. '5  How.  Pr.  390. 

Tiking  means  an  unlawful  taking: 
Chiidsv.  Hart.  7  Barb.  872. 

U/Uaw/ul,    IVrong/ulf  are  conclu- 


S  200.  PLEADINGS  IN  GENERAL.  ,  1 19 

§  200.  The  Same — Verified  Pleadings. — A  verified  plead- 
ing must  be  construed  so  as  to  make  all  its  parts  harmonize,  if 
possible,  with  each  other.^  And  the  entire  pleading  must  be 
considered  together.' 

The  averment  which  bears  most  strongly  against  the  pleader 
■will  be  taken  as  true.^  But  the  liberal  provisions  of  the  statute, 
in  facilitating  amendments  to  pleadings,  have  somewhat  modified 
the  maxim  that  pleadings  should  be  construed  most  strongly 
against  the  pleader,  as  laid  down  by  standard  authors;  and 
which,  subject  to  such  modification,  has  been  declared  as  still 
the  rule  of  construction.'* 

It  is  presumed  that  every  person  states  his  case  as  favor- 
ably to  himself  as  possible.^  And  yet  the  language  of  a  plead- 
ing is  to  have  a  reasonable  intendment  and  construction. ^ 

So,  if  a  pleading  has  on  its  face  two  intendments,  it  ought  to 
be  construed  by  this  rule.'^  But  where  an  expression  is  capable 
of  different  meanings,  that  meaning  should  be  taken  which  will 
suppoit  the  allegation,  and  not  the  one  which  would  defeat 
it.®  And  when  a  word  has  two  meanings  in  law  differing  in 
degree  merely,  it  will  be  understood  in  its  larger  sense,  unless 
it  appears  to  be  used  in  its  narrower  sense.^ 

Doubtful  language  is  construed  most  strongly  against  the 
pleader,*'^  unless  confessed  to  be  ambiguous,  with  a  request  on 
the  part  of  the  pleader  to  be  allowed  to  amend. ^^  Where  it  is 
doubtful  on  which  the  pleader  intends  to  rely,  tort  or  contract, 
that  construction  should  prevail  which  is  most  unfavorable  to 
the  pleader.  ^2 

Bions  of  law :  Pavne  &  Dewey  v.  Tread-  »  1  Ch.  PI.  241 ;  Co.  Lit.  303 ;  Fuller 

■well,  16  Cai.  220.     When  used  in  eon-  v.  llimplon,  5  Conti.  422. 

neclion    with    issuable   facts,    thouiijh  *  I  (^h.  PI.  237;    Com.   Dia:.  PI.    (C. 

they  do   not  vitiate    a   pleading,  Hre  25);   Hitstiii<?s  v.  Wood,  13  Jihiis.  48'2. 

SurplusMge.  and  had  better  be  omitted:  '  Uiited  States  v    Linn,  1  How.  (U. 

Miks    V.    M.  D.frmott,   31    Cal.  271;  S.)lOl;    17  Pet,  (U.  S.)  88;  compare 

Hiiilp<k  V.  Mixer,  16  Id.  575.  Kerr  v.  Force.  3  Cntnch,  8. 

Writing  Ohligatory. —  At  common  *  1  Chit.   287;    Vernon  v.  Keyes,  4 

law,   the  term  "  writinsj  oblig,atory  "  Tnuiit.  492;  G.ii^ev,  Acton.  1  S!iik.32o; 

in  a  pleiidinsi  imports  a  sealed  instru-  The    Kin<»  v.  Siephens,  5  E  ist,    244, 

meiit:  Clark  v.  Pliiliips.  Hempst.  2!U.  2')7;  12  Id.  279;   Pender  v.  Dicken,  27 

»  Kvle  V.  Harrington.  4  Abh.  Pr.  421.  Mis^.  (5  Cush.)  2 V2. 

8  Farrish  v.  Coon.  40  Cal.  33;  Alle-  »  Miller  v.  Miller,  33  Cal.  3'>3. 

many  v.  Petaluma,  38  Id.  5">3 ;  4  E  ist,  l"  Sieph.  PI.  378 ;  1  Chit,,  257 ;  Moore 

502;"  B.'ach  v.  Berdell.   2    Duer,   327;  v.  Hesse.    30  Cal,  r,70;    Bite*  v.  Kose- 

Hiiich  V.  Peet,  23  Barb.  .575.  krans,    23   H-.w.    Pr,    98;    Ridder  v. 

3  Bell  V.  Brown.  22  Cal.  671;  Tris-  Whiiloek,  12  Id.  208. 

connv  V.  Orr,  49  Id.  612.  ^'  Neviida  Hiid  Sacramento  Co. Canal 

<  Diekinson  V.  MM£:uire.    9   Cal.  46;  Co.  v.  Kidd,  28  Cal.  673;  Chipmau  v. 

Moore  V,  Bes.<e,    .30  Id.  570;    Kinsrsley  £m"ric.  5  Id.  49 

V.  Bill,  9. Mass.  198;  Doane  v.  Badi^er,  ^  Kidder  v.  Whitlock.  12  How.  Pr. 

12    Id.    69;    Star    Steamship   Co.  v.  212;  Munjjer  v.  Hess,  28  Barb.  75, 
Mitchell,  I  Abb.  Pr,  (N,  S.)  396. 


120'  ANALYSIS  OP  PLEADINGS.  §  201. 

This  rule,  however,  does  not  require  such  a  construction  to 
be  given  as  will  make  the  pleading  absurd.^  The  demand  for 
judgment,  and  the  summons,  may  in  such  cases  be  consulted.  ^ 

Allegations  in  the  present  tense  in  a  verified  pleading  must 
be  deemed  as  relating  to  the  date  of  verification. ^  If  the  alle- 
gations of  a  defense  are  pertinent  to  the  controversy,  their  suflS- 
ciency  can  only  be  tested  on  demurrer  or  on  the  trial.'* 

A  general  allegation,  followed  by  a  specific  one,  is  governed 
by  the  latter.  The  latter  clause  of  the  sentence  explains  and 
restricts  the  former  part  ;^  and  an  averment  of  a  legal  conclu- 
sion at  variance  with  an  admitted  fact  will  be  disregarded.^ 
And  such  averment,  without  any  fact  to  warrant  it,  is  always 
disrcarded. 

§  201.  Implied  Admissions  in  Pleadings. — A  failure  to 
answer  is  an  admission  of  every  issuable  fact  stated  in  the  com- 
plaint, and  of  those  only.'  But  such  failure  to  answer  does 
not  admit  anything  contained  in  the  answer  of  a  co- defendant. ^ 

§  202.  Admissions  by  Demurrer  and  Answer. — A  de- 
murrer admits  the  truth  of  such  facts  as  are  issuable  and  well 
pleaded,  but  not  the  conclusions  drawn  therefrom.  A  demurrer 
to  the  answer  to  a  petition  for  a  writ  of  mandate  is  an  admis- 
sion of  the  matters  averred  in  the  answer.^  Every  material 
allegation  in  the  complaint,  not  controverted  by  the  answer 
thereto,  shall,  for  the  purpose  of  the  action,  be  taken  as  true.^° 
The  failure  to  deny  is  an  admission  of  the  truth  of  such  alle- 
gations, and  such  admission  is  conclusive.^  So  when  the  an>wer 
contains  a  cross-complaint,  the  matters  therein  alleged  will  be 
taken  as  confessed,  if  not  replied  to.^^  ^ut  immaterial  allega- 
tions require  no  denial,  and  are  not  admitted  by  such  failure  to 
deny  them.^^  Nor  averments  of  mere  evidence.^*  The  statement 
of  any  new  matter  in  the  answer,  in  avoidance,   or  constituting 

II  Chit.  237;   Mrtrshall  v.  Shafter,  8  w"oodworth  v.   Bellows.   4  How. 

82  Cal.  176 ;  Lorraine  v.  Long,  6  id.  Pr.  24. 

452.  »MiddIeton   v.   Low,  30  Cal.   596; 

^Sellar  v.  Sage,  12  How.  Pr.  53t;  BninhHtn  v.  Mayor  ot  San  .Jose,  24  Id. 

Rodders  V.  Rodgers,    11     Barb,    696;  602.    Whether  anything  more  than  the 

Chamhers  v.  Lewis,  2  Hilt.  691.  exact  allegations  of  a  coinplaint  on  de- 

8  Wheeler  v.   Heernians,  8   Sandf.  murrer  are  admitted,  see  Lvon  v.  City 

Ch.5'.>7;  Rice  V.  O'Connor,    10  Abb.  of  Brooklyn,  28  Birb.612.    For  further 

Pr.  362.  authorities,  consult  Demurrer,  vol.  2. 

*  Carpenter V.  Bell,  19  Abb,  Pr. 258.  ^^  Oiliromia  Code.  sec.  462 ;  Nevada 
6  Hatch  V.  Peet,  23  liarb.  584.  Code,  Id. ;  Idaho,  Id. ;    Arizona,   Id.i 

•  Jones  V.  Phoenix  B^inlv.4  Sold.2.S5;     N.   Y.  Code,  sec.  268. 
Robinson  v.  Stewart,  10  N.  Y.  189.  "  D  .11  v.  Good,  38  Ctl.  287. 

'Doll  V.   Good,   38  Cal.   287;    De        12  Herald  v.  Smith,  34  Cal.  125. 
Godey  V.  De  Godcy,891d.  167;  Brad-        «  Canfield  v.   Tobias,   21    Cal.  349; 

burv  V.  Cronise,  46  Id.  2S7 ;    Cutt'uian  Oe<^h3  v.  Cook,  3  Duer,  161. 
V.Brown,  2  West  Coast  Rep.  98,  "  Racouillat  v.  Rene,  32  Cal.  450, 


§  204.         PLEADINGS  IN  GENERAL.  121 

a  defense  or  counter-claim,  must  on  the  trial  be  deemed  con- 
troverted by  the  opposite  party  :i  as  a  plea  of  infancy ,2  or  the 
statute  of  limitations. 3  If  a  complaint  is  sworn  to,  a  general 
denial  in  the  answer  thereto  admits  all  the  material  allegations 
thereof:  the  denial  should  be  specific.^  And  where  the  admis- 
sions in  the  answer  negative  its  general  denials,  the  latter  may 
be  disregarded.^  A  specific  denial  of  one  or  more  allegations 
is  an  admission  of  all  others  well  pleaded.^  So,  also,  a  denial 
of  value  alleged  is  an  admission  of  any  value  less  than  the 
amount  alleged.'  Literal  and  conjunctive  denials  are  bad. 
Where  allegations  are  compound,  and  are  denied  as  a  whrile  in 
the  exact  language  of  the  complaint,  the  allegation  will  be 
deemed  admitted. ^ 

§  203.  Admissions  by  Want  of  Verifications. — In  Cali- 
fornia, if  the  answer  be  not  verified,  the  genuineness  and  due 
execution  of  the  written  instrument,  of  which  complaint  con- 
tains a  copy,  shall  be  deemed  admitted,  whether  the  complaint 
be  verified  or  not.^  This  is  confined  to  those  who  are  alleged 
to  have  signed  the  instrument.  An  administrator  need  not  deny 
the  signature  of  the  intestate  under  oath;!"  and  when  the  de- 
fense to  an  action  is  founded  on  a  written  instrument  embodied 
in  the  answer,  the  genuineness  and  due  execution  of  the  instru- 
ment shall  be  deemed  admitted,  unless  an  affidavit  be  filed 
denying  the  same.^^  But  the  due  execution  of  the  instrnment 
shall  not  be  deemed  admitted,  unless  the  party  controverting 
the  same  is  upon  demand  permitted  to  inspect  the  original. ^^ 
A  paper  attached  to  a  complaint  as  an  exliibit,  purporting  to  be 
an  admission  of  agency,  is  not  an  admission,  if  the  answer 
denies  the  agency.^^  Exhibits  attached  to  an  answer  need  no 
further  verification  than  what  arises  from  the  averments  in  the 
answer,  that  they  are  copies.^*   • 

§  204.  Effect  of  Admissions. — ^No  proof  is  required  of 
facts  admitted  or  not  denied,^^  except  for  an  amount  of  unliqui- 

1  ralifornin  Code.  sec.  462.  Smith  v.  Richmond,   Id.  501 ;  Doll  v. 

2  Huds^es  V.  Hunt,  22  Biirb.  M^O.  Good,  38  Id.  287. 

«Esseltyn  V.  Weeks,  2  E.  D.  Smith,  *  California  Code,  sec.  447;  Sacra- 
lift;  2  Kern.  635;  see,  also.  Cutler  v.  mento  Co.  v.  Bird.  31  Cal.  73;  Jiuiv 
Wi-isjtit,  22  N.  Y.  472;  McKenzie  v.  i-ett  v.  Stearns,  33  M.  4()8. 
Farrell,  4  Bosw.  193.  ^'  Meath  v.  Lent,  1  Id.  411. 

*  Pico  V.  Coliiniis,  32  Cal.  678;  Lan-  "  California  Code,  sec.  448. 

ders  V.  Bolton,  26  Id.  3rt3.  '^  California  Code,  sec.  44'). 

6  Fremontv.  Seals,  18  Cal.  433.  ^  Garfield  v.  Kiiiijlu'a    Ferry    and 

«  De  Ko  V.  Cordes,  4  Cal.  1 17.  Tab.  Mt.  Wat.  Co  ,  14  Cal.  37. 

T  Towdy  V.  Ellis.  22  Cal.  651.  i'  Ely  v.  Frisbie,  17  Cal.  250. 

8  Blood    V.    Liijht,     81     Cal.    115;  1*  Tuolumne  Redemption  Co.  v. Pat- 

Woodworth  V.  Knowlton,  22  Id.  164;  terson,  18  Cal.  416;  Pallersoa  v.  Ely, 

Blaukman  v.   ValUjo.   15  Id.    638;  19  Id.  28. 


122  ANALYSIS  OF  PLEADINGS.  §   205. 

dated  damages.^  On  such  admissions,  the  onus  of  proving  his 
affliraative  allegations  will  be  thrown  on  the  defendant.^  An  ad- 
mission in  the  answer  that  defendant  received  money  to  plaint- 
iff's use,  and  refused  to  pay  the  same  on  demand,  does  not  pre- 
clude evidence  of  payment  if  payment  is  set  up  in  the  answer.^ 
But  an  admission  in  one  plea  does  not  operate  as  an  admission 
in  respect  to  an  issue  presented  in  another.'*  Where  there  are 
several  defenses  in  an  answer,  an  admission  made  in  one  is  not 
an  admission  for  all  the  purposes  of  the  case.  It  does  not  de- 
stroy the  effect  of  a  denial  of  the  m  itter  thus  admitted  in  an- 
other answer.^  When  an  ultimate  fact  is  admitted,  probative 
facts,  tending  to  establish,  modify,  or  overcome  it  will  not  be 
considered.^  So  an  almission  of  indebtedness  implies  a  promise 
to  pay." 

§  205.  Variance  and  Defects. — Although,  as  heretofore 
stated,  the  rule  is  well  established  that  the  alle'jata  and  probata 
must  correspond,  and  that  the  pliintiff  must  prove  his  case  as 
alleged  in  his  complaint,^  the  codes  uniformly  provide  than  an 
error  or  defect  that  does  not  affect  a  sul>stantial  right  shall  be  dis- 
regarded.^ This  provision  of  the  code  has  been  m  st  beneficial 
in  doing  away  with  the  technicalities  of  the  common  law,  and 
should  be  liberally  construed. i**  And  a  disregard  of  a  variance 
may  be  held  equivalent  to  an  amendment  at  the  trial. ^^  A  vari- 
ance between  the  pleadings  and  proof,  if  it  be  not  a  material 
variance,  that  is,  one  which  has  actually  misled  the  a  1  verse 
party  to  his  prejudice,  shall  not  be  regarded.^*  But  wliere  the 
allegations  in  a  pleading  to  which  the  proof  is  dire(!ted  remain 
unproved  in  its  entire  scope  and  meaning,  it  is  not  a  case  of 
variance  to  be  disregarded,  an  I  an  amendment  will  not  be 
allowed  unless  it  clearly  appear  to  be  in  furtheran-e  of  justii^e 
to  allow  it.  13  If  evidence  is  offered  by  the  plaintiff  at  variance 
with  the  allegations  of  the  comj)lai;it,  and  the  co  insel  for  the 
defense  does  not  object  to  it  at  the  time,  nor  move  to  strike  it 

*  Stuart  V.  Binssp,  10  Bosw.  4B6.  York  Code,  sec.  17fi ;  Nevnda,  spc.  71 ; 
'  Thomp-oii  V.  Lee,  8  ChI.  275.  Ida '<>,  sec.  71  ;  ArizuiiH.  s<  c.  7L 

8  McDonald  v.   Davidson,    30  Cal.  i»  B.  saii  v.  O'li.-illv,  =  2  C«l.  11. 

174.  *'  Miiliikcn  v.  Hull,  h  CmI.'J45;  Cole- 

*  Fowler  V.  Davenport,  21  Tex.  626.  niai  v.  PI  ivsted,  SU  Ujirb.  2H:    Smith 
»  Silerv.  Jewell,  88  ChI.  92.  v.  li<H',  1  West  Codsl  Rt-p.  'lOJ. 

«  Mullord  V.  E-tiidillo,  32  Cnl.  131.  *' c:nlifoiniK  Code,    sec.  47o;   Rpc;nn 

'  LevitLSon  v.  Sctiwartz,  22  Cal.  229.  v.  O'K.mHv,  32  Cal.  1 1  ;  PIhIp  v  Vcua, 

8  Oould's  PI.  IfiO;  Stout  V.   Coffin,  31  Id.  S83;   Lettraou  v.  Uilz,  3  Saiidf. 

28  Cal.  65;     Halhiiwav  v.    liyan,  35  7M 

Id.  188;     Tomliiison    V.  Monroe,   41  '3  g.^prt  v.  Wicker.  10H'>w   Pr.  193; 

Id.  94.  CatlJu  V.  Hansen,  1  Duer,  309. 
•California  Code,  sec.  475;    New 


§  205.  PLEADINGS  m  GENERAL,  123 

out  upon  the  ground  of  variance,  this  error  is  waived.*  As 
ilhistrations  as  to  what  consiitutes  a  material  or  immaterial  de- 
parture between  the  pleadings  and  the  proofs,  it  has  been  held 
that  the  complaint  must  agree  with  the  summons  in  the  de- 
scription of  the  parties.^  On  the  contrary  it  was  held  in  New 
Hampshire,  that  the  description  of  the  defendants  as  partners 
under  a  particular  name  or  fiim  in  the  writ,  is  not  an  averment 
that  they  promised  by  that  nnme.  Proof  of  the  promise  by  an- 
other name  is  therefore  not  a  varinnce.^  It  was  held  in  New 
York,  that  a  complaint  setting  forth  a  conversion  by  the  de- 
fendant, of  money  deposited  with  him,  and  demanding  the 
amount  of  such  money,  is  not  a  variance  from  a  summons  for  a 
money  deman(i  on  contract.*  So  it  has  been  held  by  the  supreme 
court  of  the  United  States,  that  a  variance  between  pleadings 
and  findings  will  not  be  regarded  where  there  is  no  allegation 
that  the  findings  were  unwarranted  by  the  proofs.^  And  where, 
in  an  acti  >n  against  a  common  carrier  for  not  complying  with 
a  contract  to  carry  or  deliver  a  draft,  the  com})laint  alleged  that 
it  was  signed  "John  Q.  Jackson,"  the  proof  showed  that  it 
was  signed  "John  Q.  Jackson,  Agent,"  it  was  heUl,  that  the 
variance  was  immaterial.^  Further  examples  of  material  and 
immaterial  variances  are  given  in  the  notes. '^ 

1  Bovcev.  California  Stfla:«  Co..  25  t'on:  Plat«  v.  Vp£:%  81  Cal.  883; 
Cal   471  ;  Bell  v.  Ktu.wles,  4r>  Id.  10:i.  C.)C  iraii  v.  D-itv,  8  All.n  (  Mass  ),  324. 

2  Blaiicliard  v.  Strait,  8  H"vv.  Pr.  A  {'oiiiplaiiit  allci^ed  iliat  tlin  coiisid- 
88;  Tuttle  v  Smith,  6  Abb.  Pr.  3a6;  eralion  of  a  eoniract  was  live  thou- 
All''n  V.  Allen,  14  How.  Pr.  24*^.  sand  five  hiitidred  dollars;   the  proof 

8  I{n'wn  V  Jewett,  18  N.  H.  230.  wms,  that  the  consideration  was  a  sight 

*  (roff  V.  Edsierton,  18  Abb.  Pr. 3'<I.     draft,  which  was  paid:  H<'ld,  no  vari- 
6  Kailroad  Co.  v.  Lindsay,  4  Wall,     ance:  Nash  v.  Towue,  5  Wall.  U.  S. 

U.  S.  H50.  689. 

•  Zeiiilcr  v.  Wells,  Fargo  &  Co.,  28  Covenant.— P\»\nt]frs  will  not  be 
Cal.  2ti3.  allowed  to   recover   upon  an  implied 

''Consideration. — It  is  not  a  variance  covenant  in  a  lease,  toiaily   ditferent 

if,    upon   the  considernlion   stated  in  from  the  express    covenant    declared 

the  count,  it  is  proved  that  the  defend-  on,    when     otj'clion     is    spe<'ifically 

ant  undertook  to  do  an  act  in  addition  made,  thoui;h  not  taken  until  the  evi- 

to  that,  the  non-performance  of  whi'  h  dence  is  all  in :  M>  rrilt  v.  Clossen,  86 

is  stated    in    the    count:     Morrill   v.  Vt  172. 

Kichey,    18    N.    H.    295.     A    written         Dates. — So.  wben  dates  are  in  ques- 

agreement  in   this  form  :  "Bormwed  tion,  unless  they  be  the  gist  of  the  ac- 

and  received  of  A.,  two  hundred  and  tiori,   a  variance  will   be  immaterial: 

sixty  dollars,  wbicb  1  promise  to  pay  Zorkowski  v  Zorkowski.  8  Iwohertson, 

on   demand,   with   inteiest;"  innorils  (il8;    United    States    v.    Le  Bnron,  4 

a  consideration  on  its  face;  and  it  ilie  Wall.  U.    S.  642.     When    a  contract 

defendant  in  an   action    upon  it,  has  is  alleged  to  have  bee?i  made  on  a  cer- 

introduced   evidence   tending  to  show  tain  day,  it  is  no  Viiriance  Ifi  otl'er  in 

that  it  was   given    without  consider-  evidence    a   written     contract   which 

ation,  the  plaintiff   may  prove   that  it  took   effect   on    a  different  dav:    Id. 

was  given   in   payment  of  a  debt  of  a  Time  stated  in  a  pleading  is  often  not 

third    person,   althouiih    there    is   no  material,  and  may  be  depiirtd  from 

averment  to  that  effect  in  the  declara-  in  evidence :  Andrews  v.  ChadDuurne, 


124 


ANALYSIS  OF  PLEADINGS. 


§  206. 


CHAPTER   n. 

FORMAL  PARTS  OF    PLEADINGS. 

§  206  The  Formal  Parts  of  Pleadings  Consist  of  the 
caption,  commencement,  prayer,  verification,  and  subscription. 
The  caption  consists  of:  1.  The  name  of  the  state  and  county 
in  which  the  action  is  brought ;  2.     The  name  of  the  court,  and, 


19  Bnrh,  147;  but  compare  Walffpn  ». 
Crafts,  2  Alib.  l*r.  801  ;  see  also  Pt^o- 
ple  ex  rel.  Kane  v.  livder.  2  Kern.  483. 
An  averment  in  the  plaintiflTs  state- 
ment, that  notice  of  non-p  ymfnt  was 
given  at  a  wrong  date,  is  but  a  delect 
in  form,  and  the  subject  of  amend- 
ment. It  is  not  necessary  to  aver  the 
precise  da'e  when  the  notice  whs 
given.  And  the  averment  in  the 
statement  not  being  inconsistent  with 
the  fact  that  another  Tiotice  was  given 
at  the  proper  time,  if  the  parties  go  to 
trial  on  the  merits,  on  the  pleas  of 
paymetitand  puj-ment  with  leave,  etc., 
judgment  will  not  be  arretted  on  the 
ground  of  the  insufficiency  of  the  stute- 
ment  of  notice  of  non-pttyment :  Loose 
V.  Loo^e,  30  Pa.  St.  588. 

Deceit. — A  declaration  in  action  of 
tort,  which  alleges  that  the  plain'iff, 
through  his  ag'-nt,  procured  the  de- 
fendants to  furnish  and  deliver  to  him 
a  certain  article,  and  that  they  nesjjli- 
gently  and  carelessly  furnished  a 
different  article,  and  that  he  sus- 
tained an  iijury  by  the  use  of  the 
article  furnished,  believing  it  to  be 
that  which  he  ordered,  is  not  sus- 
tained bv  proof  that  the  plaintiff 
bought  the  article  of  a  third  person, 
who  obtained  it  of  tlie  def'enHants: 
Davidson  v.  Nichols,  8  Allen  (Mass.), 
75;  see  Porter  v.  Hermann,  8  Cal. 
619. 

Description. — So  in  a  case  where 
the  proof,  among  other  things,  showed 
certain  lands  to  extend  a  certain  dis- 
tance from  the  north-easterly  instead 
of  the  north-westerly  corner  of  the 
tract,  as  alleged  in  the  complaitit. 
The  ju'lgment  followed  the  descrip- 
tion in  the  complaint.  Defendant  ap- 
pealed. Held,  that  the  variance  in 
the  description  of  the  premises  did  not 
prejudice  appellant;  that  thequestion 
was  one  of  identify,  and  the  fact  that 
the  corner  <if  the  small  tract  was 
called  the  north-easterly  instead  of  the 
north-westerly  corner,  was  itself  in- 


sufficient to  defeat  the  action,  if  the 
other  and  more  d-flnite  marks  of  de- 
scription sufficiently  indicated  and 
identified  the  premises :  Paul  v.  Silver, 
1«  r-.l.  75;  Calderwood  v.  iJrooks,  28 
Id.  151. 

Joint  TAahilify, — Although  the  proof 
may  show  a  joint  liability  of  the  de- 
fendant with  another,  and  thus  may 
constitute  a  variance,  yet  if  the  objec- 
tion is  not  taken  in  the  mode  pointed 
out  by  the  code,  it  is  one  which  the 
defendants  shall  be  deemed  to  have 
waived:  Lee  v.  Wilkes,  27  How.  Pr. 
S36.  An  action  against  two  or  more 
for  a  joint  trespass  can  not  be  su-^tiined 
by  evidence  of  acts  committed  bv  one 
of  them :  Davis  v.  Cassell,  50  Maine, 
29t. 

Nuisance. — A  declaration  chnrsring 
that  the  defendant  dup.  opened,  and 
made,  is  sustained  by  proof  that  he 
formed  it  p.irtially  by  excavation,  and 
partiallv  bv  raising  wilU:  R'bbins  v. 
Chicago  City,  4  Wall.  U.  S,  6-57. 

Fromise. — If  th"  declaration  alleges 
a  single  promise  for  the  pertormance 
of  two  different  thitigs,  foimded  upon 
an  entire  consideration,  and  the  evi- 
dence sliows  two  promi  ses,  at  different 
times,  upon  distinct  considerations, 
that  is  a  fatal  variance:  Hart  v.  Ches- 
ley,  18  N.  H.  878. 

Fromissory  Note. — It  is  held  in 
Massachusetts,  thata  declaration  upon 
an  agreement  to  discharge  the  plaint- 
iff from  all  liabilities,  on  account  of 
certain  purchases,  as  one  of  a  firm  re- 
cently dissolved,  which  alleges  that  a 
certain  note  was  due  from  the  firm  at 
at  the  time  when  the  agreement  was 
male,  is  not  sustained  by  pnof  that 
such  a  note  was  afterwards  given  for 
a  liability  of  the  firm  ;  but  an  amend- 
ment would  be  allowed  on  terms: 
Nichols  V.  Piince,  8  Allen  (Mass.), 
404;  see  also  Luna  v.  Mohr.  1  West 
Coast  Rep.  673;  Orr  v.  Hopkins,  Id. 
l')7. 

Relief. — The  complaint  should  agree 


§  208.  FORilAL  PARTS  OP  PLEADINGS.  125 

3.  The  names  of  the  parties,  plaintiff  and  defendant.^  In  the 
forms  throuirhout  this  work,  the  caption  will  be  indicated  by 
the  word  ''Title,"  which  will  be  understood  to  include  both 
the  venue  of  t!ie  action  and  the  names  of  the  parties. 

§  207.     Formal  Parts  of  Complaint — Title  of  Cause. 

Foi-m  No.  25. 

State  of  California,  I  y    *i     o  r.      * « 

^.^         3  r^       J.     ^  (  Iq  the  Supreme  Court.' 

City  and  County  of )  '■ 

Andrew  B!,ack.  Plaintiff,     | 

against  r 

Charlks  Dk an.  Defendant.  ' 

§  208.  The  Same. — ^The  first  subdivision  of  the  complaint 
is  an  essential  part  tht^reof,  an  i  constitutes  the  tide  of  the 
action.  This  embraces  the  name  of  the  state  and  county  or  venue 
of  the  action,  the  name  of  the  court  in  which  the  action  is  to 
be  tried,  and  the  names  of  the  parties  to  the  action. ■*  An  omis- 
siou  to  stat ;  either  of  these  is  an  irregularity^  which  may  cause 
the  complaint  to  be  set  aside  or  action  dismissed  on  motion. 5 

The  California  Code  provides^  that  the  complaint  must  con- 
tain : 

1.  The  title  of  the  action,  the  name  of  the  court  and  county 
in  which  tlie  action  is  brought,  and  the  names  of  the  parties  to 
the  action. 

2.  A  statement  of  the  facts  constituting  the  cause  of  action, 
in  ordinary  and  concise  language. 

3.  A  demand  of  the  relief  which  the  plaintiff  claims.  If  the 
recovery  of  money  or  damages  be  demanded,  the  amount  thereof 
must  be  stated. 

with  the  summons  as  to  the  amount  is  cure(^  by  verdict:  Robinson  v.  Eng- 

claimed:  .Johnson  V.Paul,  14  How.  Pr.  lish.  34  Ph.  St.  324;  Garland  v.   Davis, 

454.     A  departure    of  the  complaint  4  How.  U.   S.   131.     If  the   nause  of 

from  the  summons,  in  respect  to  the  action    or   defense     be   subslanlially 

form  of  relief,  is  not  ground   for  re-  proved,  the  failure  to  prove    certain 

versing  the  judgment  on  appeal.    If  alieg^tions  precisely  as  laid,  is  an  ira- 

necessary  to  sustain  the  judgment,  the  material  variance  which    will    b^'  to- 

Bummons  may  be  amended  on  appeal  tally  disregarded:  Union  India  Rub- 

from  the  judgment,  so  as  to  conform  berCo.  v.  Tomlinson,  1  Smith,  Com. 

to  the  fact  proved:  Willettv.  Stewart,  PI.  R.  364;  Lettman  v.  Ritz,  3  Saiidf. 

43  Barb.  98.     But,   in  most  states,  it  734. 

seems  an  appearance  waives  all  errors  ^  1  Ch.  PI.  261,  527,  528;  1   Arch, 

of  siTvice,  or  form  of  summons.  72,  168;  Steph.  PI.  410;   Topping  v. 

Statement  of  Cause  of  Action. — The  Fuge,  I  Marsh.  341. 

complaint  must  agree  with  the  sura-  *  Or,  in  the  superior  court,  in  and 

mons  in  the  statement  of  the  cause  of    for  the  county  of  state  of 

action:  Ridder  v.  Whitlock,   12  How.  'See   California  Code,  sec.  426j   4 

Pr.  208:   Boington  v.  Lapham.  14  Id.  Comst.  253.                                .•(jnr.!:*^, 

860;    Shafer  v.  Humphrey,   15  How.  *  1  Van  Santv.  203. 

Pr.  564;  Campbell  v.  Wright,  21  Id.  » -vyiniamg  y.    Wilkinson,   1    Code 

13.    But  if  the  complaint  set  forth  a  R.  20. 

substantial  cause   of   action,  and  the  •  Sec  426. 

defect  be  one  that  was  amendable,  it 


126  ANALYSIS  OF  PLEADINGS.  §  209. 

§  209.  Name  of  County. — Naming  the  county  in  the  title 
of  the  cause,  as  above,  is  a  sufficient  designation  of  the  county 
in  which  the  plaintiff  desires  the  trial  to  be  had.^ 

§  210.  Nams  of  Court. — Every  complaint  shall  be  entitled 
in  the  proper  court.^  If  a  suit  be  brought  in  a  local  court,  the 
full  title  of  the  court  s'.ioulJ  be  given,  e.  g. :  "  Tlie  City  Court 
of  Brooklyn."  But  where  the  summons  and  complaint  are 
served  together,  its  omission  from  the  complaint  is  a  technical 
irregularity  which  can  not  injure  the  defendant. ^  But  if  neither 
tlie  summons  nor  complaint  names  any  court,  no  cognizance  of 
the  notion  need  be  taken. ^ 

§  211.  Names  of  Parties. — The  law  knows  only  one  Chris- 
tian name,  and  all  intervening  initials  are  no  part  of  the  name.* 
It  seems  that  tlie  word  "junior"  is  no  part  of  a  name.^  Nor 
the  word  "senior."  These  are  mare  unnecessary  additions, 
and  should  not  be  inserted  in  the  complaint.  Yet  we  do  not 
see  why  the  terms  "  junior  "  or  "  senior  "  may  not  be  proMcrly 
used  in  a  complaint  for  the  purpose  of  more  clearly  identifying 
the  person. 

The  caption  should  contain  the  names  of  all  the  p'lrtios, 
plaintiff  and  defendant.'  The  rule  is  that  the  names  of  the 
parties  must  be  fully  set  forth  and  be  properly  designated,  the 
complaining  party  as  plaintiff,  and  the  adverse  party  as  defendant.® 
If,  however,  some  are  name  1  in  the  title,  and  all  are  correctly 
named  in  the  body  of  the  com;)laint,  it  will  be  sufficient.^  But 
being  once  stated,  it  is  sufficient  afterwards  to  desijinate  them 
as  "the  plaintiff  "  and  "  the  defendant."^**  And  this  rule  applies 
when  plaintiff  sues  in  an  offijial  charac;ter.^i     And  if  they  sue  in 

*1  Ch.  PI.  201;  Swiris.  PI.  141;  nev.irtheless  authority  upon  the  gen- 
Williams  PI.  97;  T.di's  Pr.  4U;  eral  Drojosilioiis. 
Steph.  PL  JS);  Tapoaii  v.  PavNrars.  2  *  People  v.  Cook,  14  Biirb.  26t. 
Hall,  301 ;  Slate  v.  I'nt,  9  Johas.  81 ;  Tint  the  law  recos^n  izes  but  one  Chris- 
Capp  V.  Gilinjin,  2  f3iiiek*'.  45;  D.ivri-  ti m  nvn^i  ww  held  in  the  case  of 
Bonv.  Powi'U,  13  tl  )vv.  Pr.  2-!7;  Mc-  ft  irwo  )d  v.  Uvstings,  Cal.  Sup.  Ct., 
Kennav.  PUk,  1  How.  U.  S.  211;  Jul  v  T..  186'.). 
Loehr  V.  Lithivm,  15  Cal.  413.  *  People  v.  Oook,  14  Bnrb.  261. 

*  California  Code,  sec.  426;  see  codes  ^  C  ill  t'ornia  Code,  sec.  426;  N.  Y. 
of  Oro<if)n,  Nevida,  and  Ariz  ma;  I  Cod ),  sec.  1 42 ;  Oregon  Code,  sec.  65; 
Chit. 2  Vi ;  Tidd's  Pr.  43 ;  1  Van  Santv.  Niv i la,  sec.  39 ;  Arizona.  Id. 

202;  Ivinulinjc  v.Witt-".  Leg.  Obs.  86.  «  Oillf,,rnia  Cole,  :,ec.  308;     N.   Y. 

'  Se«  Van  Namee  v.  People,  9  How.  Code,  sec.  70;  and  see  codes  ol  Oregon, 

Pr.  198;   cited  in  Van  Benthuysen  v.  Idiho,  lievada,  Arizona,  etc. 

Stevens,  14  Id.  70.  »  Hill  v.  Thacter,  2   Code   R.  3;   8 

*  Ward  V.  Stringham,  1  Code  R-llS.  H  )w.  Pr.  407. 

The  above  authorities   have    special  *"  D.ivison  v.  Swage.  6  Taunt.  121; 

reference  to  the  New  York  practice,  Steplien^on  v.  Hunter,  Id.  406;    Stan- 

•which  in   service  of  sutnnons     and  lev  v.  Chippell,  8  Cow.  23  5. 

commeneeinent  of  action* diffjra  from  "  .Stanley  v.   Ghappsll,    8  Cow.  235: 

the  practice    of    Oaliforaia.     It    is  KotoUuiu  7.  Morrell,    2  N.  Y.  Leg. 


§  218.  FORMAL  PARTS  OF  PLEADINGS.  127 

an  official  capacity,  it  is  usual  and  proper  tliat  their  character 
should  be  indicated. ^ 

§  212.  The  Sam3— Mlstaks  in. — Though  the  nam^^s  of  the 
parlies  must  be  correctly  stated,  yet  a  mistake  in  the  name  even 
of  the  plaintiff  is  not  fatal,  but  may  be  corrected  at  any  tirae.^ 

§  213.  Place  of  Trial. — The  complaint  is  irregular  unless  it 
states  the  place  of  trial.^  And  in  such  case  it  must  be  amended  or 
stricken  out.*  It  can  not  be  cured  by  reference  to  the  summons.* 
It  may  be  amended,  but  only  on  payment  of  defendant's  costs.^ 

§214.  Raal  Party. — The  complaint  shall  contain  the  name 
of  the  real  party  in  interest.''  Tlie  term  "parties"  includes  all 
who  are  directly  interested  in  the  subject-matter  of  the  action, 
having  a  ri,c2,"ht  to  make  defense,  control  proceedings,  examine 
and  cross-examine  witnesses,  and  appeal  from  the  judgment. ^ 

§  215.  Titles  to  be  Avoided. — In  designating  the  parties 
to  the  action,  except  where  suit  is  brought  in  an  official  or  rep- 
resentative capacity,  no  title  or  other  appellation  is  necessary. 
If  inserted,  it  will  be  treated  as  mere  surplusage.^ 

§  216.  Venue,  how  Laid. — As  a  venue  is  technically  neces- 
sary to  every  traversable  fact,  when  it  is  once  properly  laid,  all 
matters  following  refer  to  it.^"  It  has  been  held,  however,  that 
a  venue  laid  in  the  body  of  the  complaint  is  sufficient.!^  "p^jg 
proper  mode  in  all  cases  will  be  to  lay  the  venue  in  the  title. 

§  217.  Title  of  Cause  where  Som3  of  the  Parties  are 
Unknown. 

Form  No.  SO, 

[Statb  Cottntt,  akd  Court.] 

Andrew  Black,  PlHintitf,       "j 

against  1 

Charlks  Dka.v,  John  Doe.  and   J 

KiCHAKD  UoK,  Defendants.       J 

§  218.  Parties  Known  and  Uaknown. — Tn  certain  cases 
the  statute  authorizes   the  plaintiff   to   proceed  against  parties 

Obs.  58;  but  compare  Christopher  v.  •  Hall    v.    Huntley,  1  Code  R.  21. 

Stoi'kholra,  5  Wend.  36.  The  authorities  apply  more  particu- 

»  Hill   V.  Thacter,   2  Code  R.  8;  8  IrtHy  to  the  practice' in    New  York, 

How.  Pr.  407.  though  they  are   applicable   in  Cali- 

»  Barne-i   y.   Perine,  9   Barb.    202;  tbrnia. 

Bank  of  HavanH  v.   MHsr*»e,   20  N.  Y.  ">  Cal.  Code,  sec.  .%7;  1  Van.  Santv. 

85rt;  Elliot  V.    Hart,   7  How.    I'r.  2>,  Eo.  Pr.  72;   see  ««<«.  Parties, 

cited  in  Dole  v.  Manley,    11  Id    138;  "Robbins  v.  Chicaijo  City,  4  Wall. 

Furnhamv.  Hildrelh,  32  Barb.  277.  (U.  S.)  6-57.     For  a  further  definition, 

5  1  Van   Santv.    203;     WilliMins  v.  si'e  Giraud  v.  Stagg,  4  E.    D.  Smith, 

Wilkirson,  1  CodeR.,  N.  S.,  20;   Hall  27. 

V.  H  intlev,  Id.  21.  "  Shelden  v.  Hoy,   11  How.  Pr.  15; 

«  Mf'rnil  V.   Orinncll,  10  How.  Pr.  Root  v.  Price,  22  Id.  372;  Butieifleld 

81 ;  Hoiclikis-i  v.  Crocker,  lo  LI.  336  ;  v.  McOucher,  Id.  150. 

Davison  v.  P..well,  13  Id.  288.  "  Cocke  v.  Ken.lall,  Hompst.  236. 

*  McKeuna  v.  Fisk,  IHow.  (U.  S.)  "  Dwightv.  Wuig,  2  McLeau,  180. 
241. 


128  ANALYSIS  OP  PLEADINGS,  §   219. 

some  of  whom  are  known  and  others  unknown,  givinir  the  true 
names  of  such  as  are  known,  ani  designating  the  others  by 
fictitious  names,  stati  ig  in  the  bo  ly  of  the  complaint  the  rea- 
son, that  "  their  true  names  are  unknown." 

Thus  if  the  plaintiff  should  be  ignorant  of  the  name  of  the 
adverse  party  he  may  designate  him  by  any  name,  and  amend, 
of  course,  at  any  stage  of  the  proceedings,  when  his  true  name 
shall  become  known. ^  But  the  plaintiff  can  not  thus  use  a  fic- 
titious name  at  his  discretion;  he  is  restricted  to  cases  where  the 
name  of  the  adverse  party  is  unknown,^  and  must  aver  in  the  plead- 
ing that  the  true  name  of  the  party  is  to  the  plaintiff  unknown.* 

§  219.    Title  of  Caass  by  and  ajiainst  Corporations. 

Form  No.  27, 
[State,  County,  and  Court.] 
The  Mono  Gold  and  Silver  ^ 

Mining  Company,  PlaintiflF,   f 
against  /■ 

The  Fort  Tejon  Railroad  1 

Company,  Uelemlant      / 

§  220.  The  Same. — A  corporation  can  not  sue  otherwise 
than  by  its  corp  )rate  name,^  and  a  company  by  its  firm  name 
or  title. ^  In  New  Y  tIc  a  banking  association  may  sue  either  in 
its  corporate  name  or  in  the  name  of  its  president.^  This  does 
not,  however,  take  the  place  of  the  averments  necessary  in  the 
body  of  the  complaint  showing  their  official  character. 

The  word  "person"  in  its  legal  signification  is  a  generic 
term,  and  intended  to  include  artificial  as  well  as  natural  per- 
sons."' All  distinction  between  natural  and  artificial  persons, 
so  far  as  the  rules  of  pleading  applicable  thereto  are  concerned, 
is  abolished. 8 

§  221.    The  State  on  the  R3lation  of  an  Individual. 

Form  No.  28. 
[State,  County,  and  Court.J 
The  People  of  the  State  of  California, 
on  the  relation  of  John  Doe,  Flainlitfa, 
against 
Richard  Roe,  Defendant. 


INIA,  "X 


'Cal.  Code,  sec.  474;  N.  Y.  Code,  the  record  to  show  tliat  the  person 

860.175;  Morgiin  V.  Thrift,  2  Cal    5fi2;  served  was  the  person  sued:  Suiter  v. 

see  also  Rosecrantz  v.  Rogf^rs,  40  Cal.  Cox.  6  Cal.  415. 

491;  McKinlay  V.  TuUU,42  Cal.  677;         ♦  Curliss   v.   Murray,   28    Cal.    683; 

Campbell  v.  Adams,  60  Cal.  205.  Crawford  v.  Collins,  30  How   Pr.  S98. 

*  Crandall  v.  Beach,  7  How.  Pr.  271 ;         *  King  v.  Randlett,  33  Cal.  318. 
People  V.  Herman,  45  Cal.  692.  «  Leonardsville  Bank  v.  Willard,  25 

»  Watorbury  v.  Mather,  16  Wend.  N.  Y.  674. 
611.     Where  a  defendant  is  sued  as        '  Dousrlass  v.   Pacific  M.  S.  S.  Co., 

James  ,   service    was   returned  4  Cal.  304. 

upon  John ,  and  judgment  was        *  San  Francisco  Gas  Co.  v.  The  City 

entered  against  .J :  Held  to  he  ofSm  Francisco,  9  Cal.  467;  see  also 

error,  unleAs  there  was  something  in  sec.  17,  Fulitical  Code  of  Califuruia. 


.1 


§  229.  FORMAL  PARTS  OF  PLEADINGS.  12»- 

§  222.    By  Guardian  ad  Litem. 

Form  No.  29. 
[State,  County,  akd  Court.] 
John  Dok,  by  his  guardian  ad  litem,  Richard  Roe,  Plaintiff,  ^ 
against  r 

The  Southern  Pacific  Railroad  Company,  Dcfendaot.     J 

§  223.    By  Assignee  for  Creditors. 

Fonn  No.  30. 

[State,  County,  and  Court.] 

JoHv  Doe,  as  Assignee  for  the  Bunefit  of  the  -x 

Creditors  of  James  Roe,  Piaintitf.  f 

against  i 

Richard  Black.  / 

§  224.    By  and  against  National  Banks. 

Form  No.  SI. 

[State,  County,  and  Court.] 
The  First  National  Bank,  Plaintiff, 

against 
The  Second  National  B.ank,  Defendant 

§  22).  Tlie  Sim3. — In  alleging  the  corporate  existence  of  a 
national  bank,  it  is  sufficient  to  state  that  the  plaintiff  or  de- 
fendant is  a  corporation  duly  incorporated  under  the  national 
banking  laws  of  the  United  States.  As  affecting  the  necessity 
of  giving  costs,  the  location  of  the  plaintiff's  place  of  business 
should  sometimes  be  alloged.* 

§  226.    By  an  OSssr  of  the  State. 

Form  No.  S3. 

[State.  County,  and  Court.] 

Andkkw  Ulack,  Comptroller  of  \ 

THE  State  of  California,        I 

Plaintiff,   V 

against  1 

Charles  Dean,  Defendant.  ) 

§  227.     Nam3  of  OMcer. — ^The  action   should   be  brought 
in  tlie  name  of  the  officer,  with  the  title  of  his  offije  annexed.* 
§  228.     Title  and  Commencement. 

Form  No.  S3. 
[State.  Cjuntty.  and  Court.] 
Andkew  Black,  flainiiff,      1 
arjainst  V 

Charles  Dean,   Defendant.) 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

§  229.     ComTisncemeat. — The  comm^ncemont  of  pleadings 

consists  of  those  formal  words  of  expression  used  to  introduce 

the  subject-matter. 

1  Abb.  N.  Cas.  292;  Id.  29.^?,  note;  4  Id.  224;  £0  Barb.  839. 
»  Paige  V.  Fazackerley,  3(i  Barb.  392. 

ESTBB,  Vol-  1—8, 


ISO  ANALYSIS  OF  PLEADINGS.  §   230. 

if  230.  Commsncement — "By  One  Suing  for  Himself  and 
Others. 

Form  No.  S4. 
[Stat re,  CoimTT,  and  Court.] 
The    plaintiff    complains    on    behalf  of  fiiraseu   and   of  all 
others  (judgment  creditors   of   the  defendant),  who  shall  in  due 
time  come  in  and  seek  relief  by  and  contribute  to  the  expenses 
of  this  action,  and  alleges: 
§  231.     Conclusion  of  Complaint. 

Form  No.  35. 

Wherefore  the  plaintiff  demands  judgment,  etc. 

E.  F.,  Attorney  for  Plaintiffs. 
[Vkrificatiok.] 

§  232.  Cdnclusion. — Tae  conclusion  varies  according  to 
the  character  of  the  document  to  which  it  is  a  fflxed.  In  a 
complaint  it  consists  of  the  prayer  for  relief,  signature  of 
counsel,  and  verification;  while  in  an  affidavit,  the  signature 
and  jurat  only  are  required.  Where  two  attoneys,  partners, 
subscribe  a  pleading,  they  may  sign  in  their  firm  name.^  And 
the  subscription  to  the  verification  of  a  pleading  is  a  sufficient 
subscription  of  the  pleading.''  The  codes  provide  that  every 
pleading  shall  be  subscribed  by  the  party  or  his  attorney. ^  But 
an  attorney  in  fact  who  is  not  an  attorney  at  law,  can  not  sign  his 
name  to  the  complaint  for  his  principal  as  "  plaintiff's  attorney,"  * 

§233.    Form  of  Complaint,  Complete. 

Fo7'm  No.  S6. 

[RtATB,  CotTNTT,  AND  COUET.l 

Andrew  Black,  Plaintiff, 

against 
Charles  Ukan,  Defendant.^ 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  For  a  first  cause  of  action; 

I.  That,  etc. 

II.  That,  etc. 

III.  That,  etc. 

2.  For  a  second  cause  of  action: 

I.  That,  etc. 
II.  That,  etc. 
III.  That,  etc. 
Whereiorethe  plantiff  demands  judgment,  etc. 

E.  F.,  Plaintiff's  Attorney. 
[Vkrification.] 

*  Bank  of  Geneva  v.  Rice,  12  Wend.  424. 
»  Hublx'll  V.  Livingston,  1  Code  R.  63. 

»  California  Code,  st'e.  446;  N.  Y.  Code,  sec.  158, 

*  Dixey  v.  Pollock,  8  Cal.  670. 


§  238.  FORMAL  PARTS  OF  PLEADINGS.  181 

§  234.    Clerk's  Certificate  to  Copy  of  Complaint. 

Form  No.  S7. 
I  herehy  certify  the  foregoing  to  be  a  full,  true,  and  correct 
copy  of  the  original  complaint  on  file  in  my  office,  in  the  above- 
entitled  action. 
In  witness  whereof  I  have  hereunto  set  my  hand  and  affixed 

the  seal    of  the  above-named  court,  this day  of 

A.  C,  Clerk. 
By  J.  S.,  Deputy  Clerk. 
§  235.    Amended  Compxaint  —  Commencement. 

Foi-m  No.  S8. 
[State,  Couttft,  Court,  and  Parties.] 
Plaintiff,   by  leave  of  the  court  [or  by  stipulation]  files  this 
his  amended  complaint  and  alleges : 
[State  cause  of  action  as  before.] 

§  236.  Formal  Parts  of  Defendant's  Pleadings  —  Com- 
mencement of  Demurrer. 

Form  No.  S9, 
[Titlts.] 
The  defendant  demurs  to  the  complaint  [or  to  the  first  al- 
leged cause  of  action  in  the  complaint]  filed  herein   and   for 
cause  of  demurrer  alleges : 
I.  That,  etc. 
n.  That,  etc. 
§  237.     Grounds  of  Demurrer.  — The  defendant  may  state 
as  many  grounds  or  causes  of  demurrer  as  may  be  apparent  on 
the  face  of  the  complaint.      But  each  cause  or  ground   should 
be  distinctly  alleged,  and  be  numbered  in  the  marjrin  as  above, 
and  if  the  demurrer  is  sustained,  plaintiff  may  obtaia  leave  of 
court  to  file  an  amended  complaint,  which  will  take  the  place  of 
the  original  complaint  in  the  action.^ 
§  238.    Form  of  Answer. 

Form  No.  40. 
[TrrLB.] 
The  defendant,  by  G.  H.,  his  attorney,  answers  the  complaint 
herein,  and 

1.  For  a  first  defense  to   the  first  alleged   cause  of   action, 
denies : 

I.  That,  etc. 

2.  For  a  second  defense  to  said  first  alleged  cause  of  action, 
defendant  alleges : 

I.  That,  etc 

1  See  ibis  subject  diacussed  at  lengtb  in  second  Yolame  under  bead  of  "  !>•• 
murrer." 


132  ANALYSIS  OF  PLEADINGS.  §  239. 

3.  For  a  third  defense  to  said  first  alleged  cause  of  action, 
defendant  alle.es: 

[Slit  foith  facts  constituting  the  defense,  and  if  any  of  thera 
have  been  alleged  above,  an  express  reference  to  them  will 
suffice.] 

4.  And  for  a  counter-claim  to  the  second  alleged  cause  of 
action,  defendant  alleges: 

I.  That,  etc 
Wlierefore    defendant    demands,    etc.    [stating    demand     on 
counter-claim]. 

G.  H. ,  Attorney  for  Defendant. 

[VERiyiCATION.] 

§  239. .  Attorney's  Signature,  in  New  York  may  be  omit- 
ted where  he  has  served  a  notice  of  appearance ;  and  where  two 
attorneys  are  partners  the  firm  name  will  suffice.'  But  the  sig- 
nature of  counsel  must  be  attached  to  an  answer  in  chancery. ^ 

§  240.  Demand  of  Relief. — No  demand  for  relief  is  neces- 
sary, unless  the  defendant  seeks  some  affirmative  relief  against 
the  plaintiff  or  against  a  co-defendant.^ 

§  241.  Denials  of  Several  Allegations  are  but  one  de- 
fense* So  several  demands  against  the  plaintiff,  available  as  a 
set-off,  may  be  pleaded  in  one  defense.  Each  must,  however, 
be  distinctly  described.* 

§  242.  Distinct  Defenses. — Each  defense  in  an  answer 
which  is  declared  to  be  a  distinct  defense,  must  be  complete  in 
itself,  and  must  contain  all  that  is  necessary  to  answer  the 
whole  cause  of  action,  or  that  part  which  it  professes  to  answer, 
either  by  express  allegation  or  by  an  express  reference  to  other 
parts  of  the  answer;^  though  a  partial  defense  must  be  pleaded, 
and  may  be  pleaded  as  a  separate  defense."^ 

§  243.  First  Alleged  Cause  of  Action.— If  the  complaint 
contains  more  than  one  cause  of  action,  the  answer  sliould  in- 
dicate to  which  cause  of  action  each  defense  is  interposed.® 
But  if  the  substance  of  the  defense  shows  to  which  cause  of 
action  it  is  addressed,  it  is  sufficient  on  demurrer.^ 

§  244.  For  a  First  or  Second  Defense. — Where  a  num- 
ber of  defenses  are  pleaded  in  one  answer,  they  must  be  se[)a- 
rately  stated   and   plainly  enumerated,  and   the   denials   should 

*  Bank  of  Geneva  V.  Rice,  12  Wend.        •  Loosey    v.    Orsor,  4    Bosw.  391; 
424.  Ayres  v.  Covill,  18  Barh.  260. 

'  Davis  v.  Davidson,  4  McLean,  136.        '  Loosey  v.  Orser,  4  Bosw.  391. 

«  Averill  v.  Taylor,  5  How.  Pr.  476.        ^  Krieedler  v.  Sternberg,    10  How. 

*  Otis  V.  Ross,  8  How.  Pr.  193;  11     Pr.  67. 

N.  y.  Leg.  Obs.  348.  »  Willis    v.   Taggard,  6    Bow.   Pr. 

»  Ranuey  v.  Smith,  6  How.  Pr.  420.    433. 


§  249»       FORMAL  PARTS  OF  PLEADINGS.         138 

be  distinctly  and  speciflcally  stated.  Consequently  there  is  but 
one  safe  rule  in  stating  actions  or  defenses,  and  that  is  to  indicate 
distinctly,  by  fit  and  appropriate  words,  where  it  commences 
and  where  it  concludes.  ^  But  no  formal  commencement  or  con- 
clusion is  prescribed. 2 

§  245.  Verification. — A  verified  answer  is  defective  if 
neither  the  answer  nor  the  verification  is  subscribed. ^  The  sub- 
scription of  the  verification  is,  liowever,  sufficient.'*  An  answer 
in  chancery  which  does  not  show  the  authority  of  the  justice  of 
the  peace  before  whom  it  was  sworn,  if  not  within  the  state,  is 
not  sufficiently  certified. ^  If  the  complaint  is  verified,  the  an- 
swer must  be  also  verified. ^ 

§  246.  Commsncemsnt  of  Answer  by  Defendant  Sued 
by  a  Wrong  Name. 

Form  No.  J^l. 

[TlTLB.] 

Defendant,  C.  D.,  in  the  sun  m  -ns  and  complaint  in  this 
action  called  L.  M.,  answers  the  complaint  herein,  and  alleges 
[or  denies]  : 

§  247.    Commencement  of  Answer  by  an  Infant. 

Form  No.  4^. 
[Title.] 

Defendant,  an  infant  under  the  age  of years,  by  N.  O., 

his  guardian,  answers  the  complaint  herein,  and  alleges  [or  de- 
nies] : 

§  248.  Commeiieeinent  of  Answer  by  an  Insane  Per- 
son. 

Form  No.  43. 

Defendant,  Q.  R.,  an  insane  person  [or  a  person  of  unsound 
mind,  or  an  idiot],  by  S.  T.,  his  guardian,  answers  the  com- 
plaint herein,  and  alleges  [or  denies]  : 

§  249.  Commencement  of  Answer  by  Husband  and 
Wife. 

Form  No.  44- 

[TiTLK.] 

A.  X.,  one  of  the  above-named  defendants,  and  B.  X.,  his 
wife,  for  answer  to  the  complaint  in  this  action,  allege  [or 
deny]  :' 

^Lipppnoott  V.   Goodwiri,  8  How.  '  Afllison  v.  Duckett,  1  Cranch  0. 

Pr.  '242;  see  Bjaedict  v.  Seymour,  6  Ol.  !it9. 

Id.  298.  «  See  post,  pt.  2,  c.  3,  «'  Verification 

*  Br'nlsio  V.  Payson,  4  Pandf.  210.  of  Pleadiiicjs." 

*  L!tiinl)ppr  v.  Allen,  2  Saiidf.  648 ;  ^  The  above  mu«t  not  be  understood 
2  Codo  R.  15.  as  an  allejjHtion  that  the  parties  are 

*  Habbull  V.  Livingston,   1  Saudf.  busbaiid  and  wife. 
8. 


134  ANALYSIS  OP  PLEADINGa  §  250. 

§  250.  Commencemant  of  Separate  Answer  of  De- 
fendant. 

Form  No.  45, 

[TiTLTt.] 

The  defendant,  A.    B.,  answers  on  his  own  behalf  the  com- 
plaint herein,  and  alleges  [or  denies]  : 
§  251.    Forms  of  Petitions — Petition  to  the  Court.   • 

Form  No.  46. 

[TiTLB.] 

To  the  honorable  the  superior  court  of  the  county  of , 

state  of  California  [or  other  court  with  full  designation]. 

The  petition  of ,  of  the  city  of ,  shows: 

§  252.    Petition  to  a  Judge. 

Form  No.  47. 
[Title.] 

To  the  honorable ,  judgje  of  the  supenor  court  of 

the  county  of ,  state  of  California  [or  other  magistrate, 

giving  full  official  designation]. 

The  petition  of,  etc. 

§  253.  Caption  of  Papers  Used  in  Probate  Proceedings 
— Decedent's  Estate. 

Form  No.  43, 
[State,  Court,  and  County.] 
In  the  Matter  of  the  Estate  1 
OF  John  Dob,  Deceased.       j 

The  petition  of,  etc. 

§254.    The  Sam3 — Minor's  Estato. 

Form  No.  49, 
[State,  Coitrt,'and  County.] 
Ik  THE  Matter  OF  the  Estate  of)  • 

John  Doe,  a  Minor.  j 

The  petition  of,  etc. 

§  255.    The  Same— Insane  Person's  Estate. 

Form  No.  60. 
[State.  Court,  and  County.] 
In  thk  M  *ttrr  of  thk  E.state  of  ") 
.John  Dok,  An  InsHin'  Person,  f 

§  256.  C aption  of  Pap 3rs  used  in  Insolvency  Proceed* 
ings. 

Form  No.  61» 
[State,  County,  and  Court.] 
In  thk  Matter  of  the  Estatk  of      > 
John  Doe,  an  Insolvent  Debtor,  / 

§  257.    Caption  of  Papers  on  Habeas  Corpus. 

Form  No.  6S, 
[State.  County,  and  Court.] 
Inthe  matter  of  John  Doe,  1 
ou  Habeas  Corpus.  / 


§  263.  FORMAL  PARTS  OF  PLEADINGS.  135 

§  258.     Caption  of  Papers  on  Disbarmeat  of  Attorney. 

Form  No.  63» 
[Statk,  County,  and  Court.] 
In  the  Matter  of  the  Application  for  " 
the  Disbiirment  of  John  Dok,  s 
a  member  of  the  bar  of  this  court,    • 
and  for  the  certificate  issued  to 
him  by  this  court. 

§  259.     Caption  of  Papers  used  in  Other  Courts. 

Form  Ifo,  54. 
John  Dok.  Plaintiflf,  1 

against  \  County  Court, County. 

Richard  Kok,  Defendant.  J  •' 

§  260.  Caption  of  Papers  used  in  Justices'  Courts. 

Form  No.  55. 

In  the  justice's   court  of  the  township  of  ,  county 

of ,  state  of  California. 

JoNH  DoK,  Plaintiflf,  1 

against  V 

Richard  Rok,  Defendant.    J 

§  261.    Order  of  a  Court  in  an  Action. 

Form  No.  56. 
At  a  regular  term  of  the  superior  court  of  the  city  an(1  county 

of   ,  state  of  California,  held  at  the  city  hail  in  the  city 

and  county  of  San  Francisco,  etc. 

Present:  The  Honorable ,  Judge. 

§  262.  Caption,  Commencsment,  and    Conclusion  of 
AfB  davits. 

Form  No.  57. 
[State.  Countt,  and  Court.] 
N  Doe,  Plaiaiilf, 

against 
lARD  Rok.  Defendar 

State  of  California,  ) 

County  of ) 

John   Doe,  of [and  if  there  are   two   deponents,    and 

James   Doe,  of ,  severally],  being  duly  sworn,  say  [each 

for  himself]  : 

1.  I  am  the  plaintiff  [or  other  description  of  the  deponent]. 

2.  I  have,  etc.     [State  facts  sworn  to] . 

[Signature] 

Subscribed  and  sworn  to  \ 

before  me  this day  > 

of ,  18 ) 

E.  F., 
[Skal]  Notary  Public. 

§  263.     Affidavits  —  Before  Whom  can  be  Taken. — Affi- 
davits to  be  used  before  any  court,  judge  or  officer  of  the  state 


John  Doe,  Plaiatilf,  l 

against  >  AflBdavit  for 

Richard  Rok.  Defendant.  J 


186  ANALYSIS  OP  PLEADINGS.  §  264. 

(California),  may  be  taken  before  any  judge  or  clerk  of  any 
court,  justice  of  the  peace,  or  notary  public  in  the  state.^  And 
an  affidavit  in  which  the  official  character  of  the  justice  before 
whom  it  is  taken,  does  not  appear,  is  good,'  as  courts  take 
judicial  notice  of  the  official  character  of  justices  of  the  peace 
in  their  own  states.  An  affidavit  taken  in  another  state  of  the 
United  States,  to  be  used  in  this  state,  may  be  taken  before  a 
comm'ssioner  appointed  by  the  governor  of  this  state  to  take 
affidavits  and  depositions  in  such  other  state,  or  before  any 
notary  public  in  another  state,  or  before  any  judge  or  clerk  of 
a  court  of  record  having  a  seal.^  An  affidavit  taken  in  a  foreign 
country,  to  be  used  in  this  state,  may  be  taken  before  an  em- 
bassador, minister,  consul,  vice-consul,  or  consular  agent  of  the 
United  States,  or  before  any  judge  of  a  court  of  record  having 
a  seal,  in  such  foreign  country.*  When  an  affidavit  is  taken 
before  a  judge  or  a  court  in  another  state,  or  in  a  foreign  coun- 
try, the  genuineness  of  the  signature  of  the  judge,  the  exist- 
ence of  the  court,  and  the  fact  that  such  judge  is  a  member 
thereof,  must  be  certified  by  the  clerk  of  the  court  under  the 
seal  thereof. 5 

§  264.  The  Same — Date. — The  jurat  should  state  the  day 
on  which  it  was  sworn. ^  Unless  it  is  shown,  when  the  objec- 
tion is  raised,  that  it  was  sworn  in  due  season  for  its  purpose. 
So  lield  where  it  was  shown  by  the  opposing  affidavit  that  the 
oath  was  taken  before  the  judgment  was  entered."'' 

§  265.  The  Same— Entitling  Affidavit.— Of  course,  when 
there  is  no  proceeding  pending,  the  affi  lavit  must  not  be  en- 
titled. Though  it  has  been  held  that  a  superfluous  titie  may  be 
disregarded  as  not  affecting  the  substantial  rights  of  the  pai  ty.^ 

§  266.  The  Same — Information  and  Belief. — It  is  en- 
tirely useless  in  the  affidavit  to  a  pleading  to  insert  the  words, 
"except  as  to  those  matters  stated  on  information  and  lielief, 
and  as  to  those  matters  he  believes  it  to  be  true,"  unless  the 
pleading  contains  some  averment  on  information  and  belief.^ 

§  267.  The  Same — Jurat. — The  jurat  should  be  in  a  special 
form  where  deponent  is   illiterate,^"  or  blind.^    Otherwise  the 

*  California   Code  Civil  Proc,  sec        •  Pindar  v.  Black,  4  How.  Pr.  95. 
2012.  «  But  see  Truscott  v.  Dole,  7  How. 

«Ede  V.Johnson,  15  Cal.  58,  Pr.  221 ;    Patterson   v.  Ely,   18    Cal. 

•Codec.  P.,  sec.  20 13.  28;    Kelly    v.   Kelly,   1   West    Coast 

*  Code  C.  P.,  sec.  2014.  Rep.  143. 

•  Code  C.  P.,  sec.  2015  •<•  Tidd's  Pr.  495;  3  Moult.  Ch.  Pr. 

•  Doe  v    Roe,  1  Chit.  228;  18  Eng.  551. 

Com.  L.  183.  "  Matter  of  Christie,  5  I'Ms^e,  242; 

'  Sihoolcraft  v.  Thompson,  7  How.  see  also  Matter  ot  Cross,  2  Ch.  Seat. 
Pr.446.  8. 


§  273.        FORMAL  PARTS  OF  PLEADINGS.         137 

cornraon  form  is  sufficient.*  It,  however,  seems  to  be  sufficient 
if  a  party  hears  the  paper  read,  and  swears  he  knows  its  con- 
tents. 

§  268.  The  Same— Names  of  Deponents. — ^The  names  of 
all  the  deponents  should  be  mentioned.* 

§  296.  The  Same — Place. — The  jurat  need  not  specify  the 
place  where  it  was  sworn,  as  the  venue  sufficiently  shows  it.^ 

§  270.  The  Same— Severally  Sworn.— The  affidavit 
sho^uld  show  that  they  were  severally  sworn.* 

§  271.  The  Same— State  and  County. — It  has  been  held 
that  the  omission  of  the  venue  from  an  affidavit  is  fatal.  The 
venue  is  an  essential  part  of  every  affidavit,  and  prima  facie  evi- 
dence of  the  place  where  it  was  taken. ^  This  certainly  can  not 
be  laid  down  as  the  rule  with  all  classes  of  affilavits.  If  by  the 
venue  it  appears  that  the  affidavit  was  taken  at  a  place  beyond 
that  where  the  officer  was  authorized  to  act,  it  will  not  be  re- 
ceived by  the  court.**  But  it  is  no  objection  that  it  does  not 
appear  that  the  affidavit  was  sworn  to  within  the  limits  of  the 
city  for  which  the  commissioner  was  appointed.  The  court  will 
not  presume  the  contrary.'''  An  affidavit,  notice,  or  other  paper 
without  the  title  of  the  action  or  proceeding  in  which  it  is  made, 
or  with  a  defective  title,  is  as  valid  and  effectual  for  any  pur- 
pose as  if  duly  entitled,  if  it  intelligibly  refer  to  such  action  or 
proceed!  ng.8 

§  272.  TheSame  — Subscription.  — The  affidavit  should  be 
subscribed  by  deponent  or  deponents.^ 

§  273.  The  Same  —  Subscription  to  Jurat. — The  jurat 
must  be  subscribed  by  the  officer,  with  his  official  addition.^® 
An  affidavit  should  show  upon  its  face  that  it  was  made  before 
some  officer  competent  to  take  affidavits.^ 

*  FrvRtt  V.  L'nio,  3  Edw.   Ch.  2J?9.        '  Parker  v.  Baker,  8  Paiee,  428. 

*  Alio  .vmous,  2   Chit.  19;    18  Eiig.         «  Cal.  Code  C.  P.,  sec.  lOW. 

Com.  L.  2:^5.  M   Newl.   Ch.  Pr.    Itio;    llathway 

S  1  Tiild'8  Pr.  496;  Mosher  v.  Hev-  v.  Scott.  11  Paige,  173;  overnilinjr  iii 

drick.   45   Barb.  649;    1  Abb.  Pr..  N".  etf.^ct,  Htff  v.  Spicer,  3  Cai.  190;  Col. 

S.,2o*^;  30   How.   Pr.  161;    Beld-n  v.  «&C.  Cas.  495;  and  Ja.kson  v.  Virgil, 

Devoe,  12  Wend.  223:  Mfr?.  aiidAIech.  8  Johns.  510.  which  held  that  if   aa 

Baiikv.  Cowd^n,  3  Hill,  461.  affidavit  begins  with  the  names  of  the 

*  Parloe  V.  Territt,  5M.&G.  291;  deponent,  and  appears  to  have  beea 
44  Eng.  Com.  L.  159;  Kincaid  v.  Kipp,  duly  sworn  to  before  a  proper  magis- 
1  Duer,  692;  11  N.  Y.  Log.  Obs.  31:S.  trale,  it  is  sufficient  without   th'-  .sig- 

'  Lane  v.   Morse,   6  How.  Pr.  391;  nature  of  deponent;    see   also  Ede  V. 

Cook  V.   Staats,    18  Barb.  407.     Com-  Johnson,  15  Cal.  57. 

Sare   Parker  v.  Baker,  8   Paige,  42*^;  ^^  Ladow    v.  (rroom,    1   Den.  429; 

arnard  v.  Darling,  1  Barb.  Ch.  218.  Jackson  v.  Stiles,  1  Cow.  575,     C  >ra- 

*  Davis  V.  Rich,  2  How.  Pr.  8^i ;  pare,  as  to  addition,  Hunter  v.  Lo 
Sandlaiid  v.  Adams,  Id.  127 ;  Snyder  Conte,  6  Cow.728 

Y.  Oiustead,  Id.  181.  ^  Laue  v.  Murse,  6  Huw.  Pr.  395 


138  ANALYSIS  OF  PLEADINGS.  §  274. 

§  274.    The  Same — That  I  am,  etc. — The  description  or 
residence  of  deponent  siiould  be  directly  alleged  as  above.^ 
§  275.    Cartiacate  of  Clerk  to  ASQwiavit. 

Form  Ko.  58. 

State  of > 

County  of  P^' 

I,  S.  T.,  clerk  of  the  county  court  of  said  county  of , 

do  hereby  certify  that  O.  P.,  before  whom  the  above  affidavit 
was  taken,  is  a  judge  of  the  county  court  [or  other  title],  which 
is  a  court  of  record  of  said  state  [or  county,  as  the  case  may 
be],  having  a  seal,  existing  pursuant  to  the  laws  thereof,  in  and 
for  said  county  [or  country,  district,  or  otherwise"!,  and  that  he 
is  duly  qualified  and  commissioned  as  such,  and  that  the  sub- 
scription to  the  same  is  his  genuine  signature. 

Witness  my  hand  and  the  seal  of  said  court,  at ,  this 

day  of ,  18... 

[seal.]  S.  T.,  County  Clerk. 

§  276.    Jarat,  Where  D3pon3nt  is  Blind  or  Illiterate. 

Form  No.  59. 

Sworn  before  me,  this day  of  ,  18....,  the  same 

having  been  in  my  presence  [or  by  me]  read  to  the  deponent, 
he  being  blind  [or  illiterate],  and  he  appearing  to  me  to  under- 
stand the  same.  R.  S., 

Nr>tary  Public. 

§  277.    Jurat,  where  Deponent  is  a  Foreigner. 

Form  No.  60. 

Sworn  before  me,  this -..  day  of  ,  18...,  I  having 

first  sworn  R.  M.,  an  interpreter,  to  interpret  truly  the  samj  t^  the 
deponent,  who  is  a  foreigner  not  undtTstanding  the  language, 
and  he  having  so  interpreiud  the  damo  to  deponent. 

A.  C, 

County  Clerk. 

»Sfftinhaoh  v.  Le^e,  27  Q%\.  20S;    41;  Pavne  v.  Tonnsr.  8  M    (♦  SHd.) 
Ex  parte  Bank  of  Monroe,  7  Hill,  177;     Vt*>.     0  >  in  pare  Ph  )ple  v.  JiaiUsuu,    i 
Cunningham    v.    (Toelflt,   4    Den.  71 ;     Id.  (2  (JouisU)  490. 
Staples  v.f  uircLild,  '6  N.Y.  (3  Cuindt.) 


f  279.  VERIFICATION  OF  PLEADINGS.  139 

CHAPTER  III. 

VERIFICATION  OF  PLEADINGS. 

§  278.  Provisons  of  Coie  in  Regard  to  Verification. — 

The  codes  of  all  states  which  have  adopted  the  reformed  system 
of  procedure  contain  provisions  in  regard  to  veriticalicm  of 
pleadings.  In  California  the  code  provides  that  every  plead- 
ing must  be  subscribed  by  the  party  or  his  attorney ;  and  where 
the  complaint  is  verified,  or  when  the  state,  or  any  officer  of  the 
state,  in  his  official  capacity,  is  plaintiff,  the  answer  must  be 
verified,  unless  an  admission  of  the  truth  of  the  complai'it  might 
subject  the  party  to  a  criminal  prosecution,  or  unless  an  officer 
of  the  state,  in  his  official  capacity,  is  defendant.  In  all  cases 
of  a  verification  of  a  pleading,  the  affidavit  of  the  party  must 
state  that  the  same  is  true  of  his  own  knowledge,  except  as  to 
the  matters  which  are  therein  stated  on  his  information  or  belief 
and  as  to  those  matters  that  he  believes  it  to  be  true ;  and  where 
a  pleading  is  verified,  it  must  be  by  the  affidavit  of  a  party,  unless 
tlie  parties  are  absent  from  the  county  where  the  attorney  re- 
sides, or  from  some  cause  are  unal>le  to  verify  it,  or  the  facts  are 
within  the  knowledge  of  his  attorney,  or  other  person  verifying 
the  same.  When  the  pleading  is  verified  by  the  attorney,  or 
an}'  other  person  except  one  of  the  parties,  he  must  set  forth 
in  the  affilavit  the  reason  why  it  is  not  made  by  one  of  the 
parties.  When  a  corporation  is  a  party,  the  verification  may  be 
made  by  any  officer  thereof. 

§  279.  Construction  of  Statute. — The  object  of  the  veri- 
fication is  to  secure  good  faith  in  the  averments  of  the  party.' 
There  is  nothing  in  the  statute  absolutely  requiring  t  e  com- 
plaint to  be  verified,  with  the  exception  of  complaints  in  actions 
for  an  inj  unction. ^  Or  in  actions  brought  against  steamers, 
boats,  and  vessels.^  So  also  in  proceedings  against  attorneys.^ 
And  in  applications  for  the  voluntary  dissolution  of  corpora- 
tions.* And  such  other  actions  as  are  specially  provided  for. 
The  safer  and  better  practice,  however,  is  to  verify  the  complaint 
in  all  cases,  and  if  the  complaint  is  verified,  the  answer,  as  above 
stated,  shall  be  verified  also,  except  when  an  admission  of  the 
truth  of  the  complaint  might  subject  the  party  to   prosecution 

1  Tai.  Code  C.  P.,  spo.  446.  *  Cal.  Code  C.  P.,  sec  816, 

«  .'ailersnn  v  Ely,  19  Cal.  28.  "Shc.  291. 

8  Cal.  Code  C.  P.,  sec.  627.  •  Sec.  1229. 


140  ANALYSIS  OF  PLEADINGS.  §   280. 

for  felony  or  misdemeanor.^  Unless  such  prosecution  is  barred 
by  the  statute  of  limitations.^  And  when  the  court  could  not 
see  from  the  pleadings  themselves  that  the  admission  of  the 
allegations  in  the  complaint  would  subject  the  defendant  to  a 
criminal  prosecution,  he  may  show  that  fact  by  affidavit.  ^  So 
also  whenever  the  defendant  would  be  excused  from  testifying 
as  a  witness  to  the  truth  of  any  matter  denied  by  the  answer,  he 
need  not  verify  the  answer.'*  But  defendant  is  not  excused 
from  verifying  his  answer  when  the  complaint  charges  him  with 
fraud  in  msilcing  the  assignment.^  Such  verification  should  be 
by  the  affidavit  of  ihe  party,  and  if  he  be  absent  from  the  county, 
then  by  his  attorney,  or  other  person  having  a  knowledge  of  the 
facts. ^  A  verification  is  sufficient  if  it  conform  substantially  to 
the  statute.' 

§  280.  Defective  Verification.— A  defect  in  verification  of 
a  complaint,  even  when  api)arent  upon  its  face,  does  not  render 
the  complaint  irregular,  because  a  verification  is  no  part  of  a 
pleading.8  It  only  operates  to  relieve  the  defendant  from  the 
obligation  to  verify  his  answer.  This,  however,  can  not  be  in 
cases  where  the  complaint  is  required  to  be  sworn  to.  If  such 
defect  be  latent,  the  remedy  is  by  motion,^  and  not  by  de- 
murrer.^" 

The  objection  to  the  want  of  verification  of  a  complaint,  where 
verification  is  required  by  statute,  must  be  taken  eitiier  before 
answer  or  with  the  answer.  The  filing  of  the  answer  waives 
the  defect."  So,  also,  the  objections  to  the  verification  to  the 
complaint,  that  it  was  not  authenticated  by  the  seal  of  the 
notary  ;  that  there  was  no  venue  to  the  affidavit ;  that  there  was 
no    evidence    that  the  officer  was  a   notary  public,    etc.,  beino' 

*  Wheeler  v.  Dixon,   14  How.    Pr.  vadn,  sec.  55;  Idaho,  Id. ;  Arizona,  Id. ; 

151;  Ansible  V.  Aiiablf,  24  Id.  92.  consult  also  Humphreys  v.  MtCali,  9 

«Heiirv  V.  Saliiia  Hk.,  1  Comst.  86.  Cal.  59;   Elv  v.  FrislAe,    17  Id.  250* 

«  So.vill.'  V.  New.  12  How.  Pr.  819;  Patterson  v.  Ely,  19  Id.  28.                     ' 

Lynch  V.  Todd,  13  Id.  547;  Wheeler  '2  Sandf.  647;    Ely  v.  Frisbie,    17 

V.  Dixon,  14  Id.  151 ;  Anablev.  Atiabln,  Cal.  250. 

24  Id    92;    Mulonev  V.  Dows,  2  Hilt.  ®  George  v.  McAvoy,    6    How.   Pr 

21-;   lilaisdell  v.  Raymond,  6  Abb.  Pr.  200. 

144.  "Gilmore   v.   Hempstead,   4   How. 

^  Drum   V.    Whitinp,    9    Cal.  422;  Pr.  153. 

Blaisd.llv.  RMyrnond,  5Abb.  Pr.  114;  i»  Seattle  Coal   Co.   v.   Thomas,   57 

ReTappm,  9  llow.  Pr.  394;   Moloney  Cal.  197;  Fritz  v.  Barnes,  6  Neb.  435; 

V.  Dows,  2  Hilt.  247;   People  v.  Kelly,  Warner  v.    V\  arner,    11    Kans.    121; 

24  How.   Pr.   8C.9:     Clapper  v.  Fil'z-  Pudney  v,  Burkhardt,  62  Ind.  179. 

Patrick,  1  Code  R.  69.  "Greenfield  v.  fejleanier  Gunnell,  6 

s  Woleott  v.    Winston,  8  Abb.  Pr.  Cnl.  69;   I.ainibeer  v.  Allen.  2  Code  R. 

422.  1');  see  Calilornia   Code  Civil  Proc, 

«  See  Cal    Pp.  Act,  sec.  55:  N.  Y.  sec.  434; 
.Code,  sec.  167;  Oregon,  mc.  79*,    N&» 


S  284.  VERIFICATION  OP  PLEADINGS.  141 

technical,  should  be  taken  in  the  court  below  and  can  not  be 
raised  for  the  first  time  in  the  supreme  court.^ 

§  281.  Before  Whom  may  be  Taken. — ^The  attorney  of 
the  plaintiff,  being  a  notary,  may  take  the  affidavit  verifying 
the  complaint.^ 

§  282.  Subscription  to  Verification. — The  verification 
must  be  subscribed  by  the  party  making  it.^  And  such  sub- 
scription, it  has  been  held,  was  a  sulflcient  subscription  of  a 
pleading.'*  A  verified  answer  is  defective  if  neither  the  answer 
nor  the  verification  is  subscribed. ^ 

§  283.  When  Answer  may  be  Verified — Amendment. 
A  deiemlant  may  be  allowed  to  verify  his  answer  before  or  at 
the  trial. ^  If  defendant  omit  to  verify  the  answer  to  a  verified 
complaint,  the  plaintiff  may  proceed  as  if  no  answer  was  filed.' 
Inability  of  counsel  to  obtain  defendant's  verification  in  time 
can  not  avail  in  resisting  a  motion  to  strike  out.^  If  the  verifi- 
cation be  omitted  or  defeclive,  the  court  may  allow  the  same 
to  be  inserted  or  amended.^ 

§  2  U.  Verification  b/  Sole  Plaintiff  or  Sole  Defendant. 

Form  No.  61, 
State  of  California.  ) 

City  and  County  of /  ^  * 

A.  B  ,  the  plaintiff  [or  defendant]  above  named,  being  duly 
Bworn,  says  as  follows : 

I  have  read  the  foregoing  complaint  [or  answer]  and  know 
the  conenLs  thereof,  anl  that  the  same  is  true  to  the  best  of  my 
knowledge. 

[SiQNATuaa.] 
Subscribed  and  sworn  to ") 

before  me,  this day  > 

of ,18...         j 

J.  K,  County  Clerk. 

»  Kuhland  v.  Sedgwick,  17  Cal.  12,3.  v.  Ball,  14  How.  Pp.  305 ;  ■McCulloufrh 

«Kiihlandv.  Sedi^wick,  17  Cal.123;  v.   Clark,  41  Cal.  29S;  Litilejohn  V. 

Young  V.  Young,  18  Minn.  90;  contra,  Munn,  3  Paige  Ch.  230. 

Meade  v.  Thome,  2  West.  L.  M.  312;        «  Drum  v.   Whiting,  9  Cal.  422. 

Warner   v.    Warner,   11   Kans.  121;        »  Bovles  v.   Hogt,   2  West.   L   M. 

Peyser  v.  McCornaack,  51   How.  Pr.  548;  White  v.  Freese,  2C.  8.  C.  R.30; 

205.  Bragg  v.    Bickford,   4  How.    Pr.  21; 

»  Laimbeer  v.  Allen,  2  Sandf.  648.  Jones  v.  U.  S.  Slate  Co.,  It5  Id.  129; 

*  Hubbell  V.  Livingston,  1  Code  R.  Davis  v.  Potter,  4  How.  155.  As  to 
63.  the  etfoct  of  a  veriflcation  when  a  writ" 

*  Laimbeer  v.  Allen,  2  Sandf,  648;  ten  instrument  is  embodied  in  a  com- 
S.  C.  2  Code  R.  15.  plaint,  consult  California  Code   Civil 

*  Angler  v.  Masterson,  6  Cal.  61 ;  Proc,  sec.  447 ;  Corcoran  v,  Doll,  32 
Arrington  v.  Tupper,  10  Id.  464;  Lat-  Cal.  83;  see  also  Heath  v.  Lent,  1  Id. 
timer  V.  Ryan,  20  Id.  628.  411.     When  embodied  in  an  answer, 

^  Stout  V.  Curran,  7  How.  Pr.  36;  see  California  Code  Civil  Proc.,  sees. 
Moloney  v.   Dows,  2  Hilt  217;  Hull    448,  449. 


142  ANALYSIS  OF  PLEADINGS.  §  285. 

§  285.     On  Information  and  Belief. 

Form  No.  62, 
[Vkvub!.] 

A.  B.,  the  plaintiff  above  named,  being  duly  sworn,  says  as 
follows : 

I  have  read  the  foreg^oing  complaint  and  know  the  contents 
thereof,  and  that  the  same  is  true  of  my  own  knowledge,  ex- 
cept as  to  those  matters  therein  stated  on  informatloa  or  [and] 
belief,  and  as  to  those  matters  I  believe  it  to  be  true, 

rSiaNATU  skI 
Subscribed  and  sworn  to  '\ 

before  me,  this  ....  day  > 

of  ,18....      ) 

J.  K.,  Notary  Public. 

§  286.  The  Sam3. — There  seems  to  be  no  reason  why  onr 
statute  prescribes  that  the  verification  shall  be  "  upon  informa- 
tion or  belief,"  instead  of  "  upon  information  and  belief,"  yet 
the  former  is  the  statute  of  this  state ;  in  New  York  the  statute' 
is  different;  there  the  word  "and"  is  used.  There  can  be  n) 
reason  why  the  language  of  the  verification  should  not  follow 
the  language  of  the  pleading  vjerified.  In  such  ease  the  verifi- 
cation should  use  the  word  "or"  or  "and"  to  corresponl  with 
the  pleading.  The  word  "  belief  "  is  to  be  taken  in  its  ordinary 
sense,  and  means  the  actual  conclusion  of  the  party  drawn  from 
information.  Positive  knowledge  and  mere  belief  can  not  exist 
together.!  If  the  pleader  avers  matters  "  upon  informatio^i 
and  belief,"  or  "  upon  information  or  belief,"  the  verification 
will  be  sufHcient  if  his  affidavit  states  that  as  to  the  matters 
thus  alleged  he  believes  the  pleading  to  be  true.^  Where  the 
pleader  states  nothing  on  the  information  or  belief,  the  verification 
need  not  mention  the  same.*''  If,  however,  there  are  such  alle- 
gations in  the  pleading,  an  allegation  that  "  the  same  are  true 
according  to  tlie  best  of  his  knowbd^e  and  belief,"  is  insu'fl- 
cient.*  So,  also,  a  verification  alleging  that  "the  same  is 
substantially  tru3,"  etc.,  was  held  insufficient,  as  co  itaining  a 
qualification  that  was  a  material  departure  from  the  require- 
ments of  the  code.* 

•  H'lmphreyi  V.  McOill,  9  Oal.  59.    words  "of  his  own  knowlerisf",'*   was 

*  Patterson  v.  Elv,  19  Oal.  28;  Kirk     held  suffltiient  in  South  worth  v.  Cur- 
▼.  Rtioaii,  43  [J.  40i.  tis.  6  Hjw.  Pr.  271 ;  see  hIso  Arata  v. 

»  Patter-ion  v.  Elv,  19  OU.  28;  Kin-  Tellurium  etc.  Co.,  3  WestCoist  Rep. 

kaid  V.  Kipp.   I  Daer,  692;   liiss  v.  151;    but  adjulged  fat il  in  Williams 

Lonvjmiir.  15  Ahb.  Pr.  32tj;  Kelly  v.  v.  liiel,  11  How.  Pr.  375;    Tiuballa  v. 

Kellv,  1  West  Coast  Kep.  U3  Seirri.i;re,  12  Id.  64. 

♦  Van    Home    v.    M  )nt<»  )rn!iry,   5  '  Wiijj^oiier  v.  Browa,  8  How.    Pr. 
Bow.  Pr.  238;  Stndler  v.  Parmlee,  10  212. 

luwti,  23.     Averificatioa  omitting  the 


§  291.  VERIFICATION  OF  PLEADINGS.  148 

§  287.    By  One  of  Several  Plaintiffs  or  Defendants. 

Fo7in  No.  63. 
[Vknue] 

A.  B.,  being  duly  sworn  on  his  own  behalf,  and  on  behalf  ot 

R.  S.,  one  of  the  other  defemlants  therein,  says  as  follows. 

1.  I  am  one  of  the  defendants  in  the  above-entitled  action. 

2.  I  have  read  the  foregoing  answer,  and  know  the  contents 
thereof,  and  that  the  same  is  true  of  my  own  knowledge,  ex- 
cept as  to  the  matters  which  are  therein  stated  on  information 
or  [and]  belief,  and  as  to  those  matters  I  believe  it  to  be  true. 

[Jurat.]  [Signature.] 

§  288.  WhenOn3ofS3vsralma7  Varify.  —  Oneof  sev- 
eral plaintiffs  may  verify.^  Bat  in  certain  cases  it  has  been 
held  that  where  the  action  is  joint,  the  parties  should  unite  in 
the  verification.'  Thus  in  an  action  against  hus'iand  and  wife, 
where  her  interest  is  separate,  the  answer  mucst  be  verified  by 
both,  if  relied  on  as  the  answer  of  both.^ 

I  289.    By  Two  Parties,  S3verally, 

Form  No.  64. 
[Vkxue.] 

A.  B.  and  C.  C,  the  plaintiffs  [or  defendants]  above  named, 
being  duly  sworn,  say,  each  for  himself,  as  follows: 

I  have  read   the  foregoing   complaint  [or  answer],  and  know 
the  contents  thereof,  and   the   same  is  true  of  my  own  knowl- 
edge [except  as  to  those  matters  stated  therein  on  information 
and  belief,  and  as  to  those  matters  I  believe  it  to  be  true]. 
[Jurat.]  £sicu(ATuaj£s.] 

§  290.    By  Officer  of  Corporation. 

Form  No.  65. 
[Vknttk.] 

A.  B.,  being  duly  sworn,  says  as  follows: 

1.  I  am  an  officer  of  the company,  the  plaintiffs  [or 

defendants]  above  named,  to  wit,  the  president  thereof. 

2.  I  have  read  the  foregoing  complaint  [or  answer],  and  know 
the  contents  thereof,  and  the  same  is  true  of  my  own  knowl- 
edge [except  as  to  those  matters  which  are  therein  stated  on  in- 
formation or  [and]  belief,  and  as  to  those  matters  I  believe  it  to 
be  true]. 

[Jurat.]  fSiONATTRK.] 

§  291.  Grounds  of  Belief^Sources  of  Knowledge. — It 
has  been  held  that  a  verification  made  by  an  officer  of  a  corpo- 

»  Patterson    v.    Elv,    19  Cal.   28;  Alfred  v.  Watkins,  1  Code  R.,  N.  S., 

Kelley  V.  Bowman,  transcript,  July  843;  Hull  v.  Ball,  14  H..w.  Pr.  305. 
18,  18»il.  » Youngs   v.  Sctly     12    How.  Pr 

s  Andrews  v.  Storms,  6  Sandf.  609 :  895 ;  Keed  v.  Buili  r,  2  HilU  589. 


144  ANALYSIS  OP  PLEADINGS.  §   292. 

ration  need  not  state  the  grounds  of  belief  or  sources  of  knowl- 
edge.    It  is  a  verificati  n  of  the  corporation. ^ 

§  292.  Managing  Agent. — A  managing  agent  of  a  corpo- 
ration is  an  officer  of  the  corporation  within  the  provisions  of 
the  act. 2 

§  293.  By  Attorney  or  Agent,  when  the  Facts  are 
within  his  Personal  Knowledge. 

Form  No.  66, 
[Venur.] 
A.  B.    be  ng  first  duly  sworn,  says: 

1.  I  am  the  attorney  of  the  plaintiff  in  this  action  [or  agent 
as  the  case  may  be]. 

2.  I  have  read  [or  heard  read]  the  forego'ng  complaint  [or 
answer] ,  and  know  the  contents  thereof,  and  the  same  is  true 
of  my  own  knowledge,  except  as  to  the  matters  therein  averred 
to  be  upon  information  or  belief,  and  as  to  these  matters  I  be- 
lieve it  to  be  true. 

3.  The  reason  why  the  verification  is  not  made  by  the  plaint- 
iff [or  defendant],  is  that  the  facts  stated  in  said  complaint  [or 
answer]  are  not  within  his  personal  knowledge. 

[.J  U 14  AT.]  [SlQNATURB.] 

§  294,  The  Same. — The  attorney  may  verify  a  complaint  in 
two  cases : 

1.  When  the  parties  are  absent  from  the  county  where  the 
attorney  resides,  or  from  some  cause  are  unable  to  verify  it. 

2.  When  all  the  miterial  allegations  of  the  petition  are  within 
his  personal  knowledge.^  But  in  all  cases  of  verification  by 
attorney  or  agent,  the  reason  why  the  verification  is  not  made 
by  the  party  must  be  set  forth  in  the  affidavit.* 

Such  verification  by  an  agent  must  disclose  the  nature  of  the 
agency.^  But  it  is  not  necessary  to  verify  by  the  agent  who 
knows  most  about  the  matter.* 

1  Glaubensklne   v.    Hamburg    and  How.  Pr.   4;    Myers  v.    Gfirritts,  13 

American    Packi-t   Co.,   9   Abb.    Pr.  A*>b.  Pr.  lOi;  Oouniey  v.  Wer-tulHiid, 

104;  compare    Vaa  Home  v.  Mont-  3  Duer,618;  lloss  v.Longmuir,24  How. 

gomt-ry,  6   How.  Pr.  238;    Anable  v.  Pr.  49.     For  pxampltis  of  insuffloinnt 

Anable,  24  Id  92.  verifl 'iitions   by  attorneys   or  agents, 

«  Gliuibeiiskipe   v.    Hamburg    and  soe  Fitch  v.  Bigelow,  5  How.  Pr.  237 ; 

American  Packet  Co.,   9    Abb.     Pr.  Meads  v.  GlensOn,  13  Id.313;  Tibballs 

104.  V.   S^jlfriduje,    12    Id.    6t;  Soutter    v. 

»  M!\3on  V.  Brown,  6How.  Pr.  481;  Mather,   14  Abb.   Pr.  440;     Bmk   of 

Tre«dw(dl  V.    Fassett,     10    Id.    184;  the  State   of  Maine  v.  Buel,  14  How. 

Wheeler  v.  Chesley,  14  Abb.  Pr.  441.  Pr.  311. 

*  Cal.  Code  C.    P.,    sec  446.     For  *  Boston    Locomotive    Works    v. 

examples  of  sufficient  veritications  by  Writrht,  15  How.  Pr.  253. 

attorneys,  see  Wheeler  v.  Chesley,  14  •  Drevert  V.    Appsert,  2  Abb.   Pr. 

Abb.  Pr.  441 ;  Stannard  v.  Mattice,  7  166 


§  298.  VERIFICATION  OF  PLEADINGS.  145 

§  295.  AgsntHavingNotes  in  Possession, — Stating  that 
the  notes  were  in  possession  of  d?poaent  suHicicntly  avers  that 
deponent  was  agent  of  the  plaintiff.^  And  autkorized  to  verify 
the  complaint.^  Whether  plaintiff  was  witliia  the  county  or 
not. 3  But  in  California,  possession  of  the  written  instrument 
or  obligation  upon  which  the  suit  is  based  does  not  authorize 
the  attorney  or  agent  to  verify  the  complaint. 

§  296.  By  Agent  when  th3  Party  is  Absent  from  the 
County. 

Form  No.  67. 

[V^N■^•K.] 

A.  B.,  being  duly  sworn,  says  as  follows: 

1.  I  am  the  attorney  [or  one  of  the  attorneys^  of  the  plaintiff 
[or  defendant]  in  this  action. 

2.  I  have  read  the  foregoinj;  complaint  [or  answer]  and  know 
the  contents  thereof,  and  that  it  is  true  of  my  own  knowledge 
[except  as  to  those  matters  therein  stated  on  information  or 
[an  ]  belief,  and  as  to  those  matters  I  believe  it  to  be  true], 

3    Tlie  reason  this  verification    is    not    made  by  the  plaintiff 
[or  defendant]  is  that  he  is  not  within  the  county  of 
which  is  tlie  county  where  I  reside. 

[luKAT,]  [Signature.] 

§  297.  The  Same— Absent  from  County. — When  the 
party  is  not  within  the  county  where  the  attorney  resides,  a 
verification  made  by  the  attorney  is  good,  though  he  have  no 
personal  knowledge  of  the  truth  of  the  allegations.^  Although 
it  appears  that  the  client  has  a  resident  agent  through  whom 
the  attorney  has  obtained  his  information.^ 

§  298.  The  Same— Grounds  of  Belief. — Where  an  at- 
torney or  agent  verifies  a  complaint,  the  verification  shall  state 
the  grounds  of  belief,  and  the  reasons  why  it  was  not  made  by 
the  party.^  The  grounds  of  knowledge  or  belief  need  not  be 
set  forth  if  all  the  allegations  in  the  pleading  are  made  in  the 
positive  form.'''  Under  the  California  Code  it  is  not  necessary 
that  the  attorney  or  agent  should  state  his  grounds  of  belief. 

»  Myers  v.  Gerrits,  13  Abb.  Pr.  106.  v.  Appsert,  2  Abb,  Pr,  165 ;    Myers  v. 

'  Mvers  V.  Gerrits,  Id.  Gerritt8,  13  Id.  106;   Gourney  v.  Wer- 

8  Wheeler  V,  Chesley,  14  Abb.  Pr,  3uland.  3Duer,613;  Dixwell  v.  Woods- 

441.  worth,  2  Code  R,l. 

*  Humphreys  V.  McCall,  9  Cal.  59;  *  Drevert  v.   Appsert,   2    Abb.   Pr. 

Ely  V.  Frisbie,  17  Id.  250;    Patterson  165. 

V.  Ely.  19  LI.  2S;  Lefevre  v.  Latson,  "Oregon    Code,     spc    79;    Boston 

6  Siuidf.  660.     Roscoe    v.  Maison,   7  Locom.   Works  v.  Wright,   15  How. 

How.  Pr.  121;  Stannard   v.  Mattice,  Pr.   253;    Meads  v    Gleason,    13    Id. 

Id.  4;    Smith  v.  Rosenthal],    11  Id.  309;  People  v.  Allen,  14  Id.  334. 

442;  Wilkin  v.  Gilman,   13  Id.  225;  ^  Rosa  v.  Longmuir,   15    Abb.    Pr. 

People  V.  Allen,  14  Id.  334 ;  Drevert  326. 
EsTKK,  Vol.  I — 10 


146  ANALYSIS  OF  PLEADINGS.  §   299. 

§  299.  The  Same — Guardian. — The  guardian,  or  attorney 
for  the  guardian,  of  an  infant  plaintiff  may  verify.^  In  an  ac- 
tion by  an  infant  appearing  by  a  guardian  ad  litem,  the  com- 
plaint may  properly  be  verified  by  the  guardian,  and  he  need 
not  do  so  as  the  agent  or  attorney  for  the  infant,  but  may  as 
the  plaintiff.^ 

§  300.     Where  the  Absent  Plaintiff  is  a  Corporation. 

Form  No.  68. 
[Vkntje.] 

A.  B.,  being  first  duly  sworn,  says:  I  am  the  attorney  of  the 
plaintiff  in  this  action.  I  have  read  the  foregoing  complaint, 
and  know  the  contents  thereof,  and  the  same  is  true  of  my  own 
knowledge  [except,  etc.] 

The  reason  why  the  complaint  in  this  cause  is  not  verified  by 
an  officer  of  said   corporation  is,  that  its  place  of  business  is  at 

in  the  state  of ,  and  that  none  of  its  officers 

are  now  within  the  county  of ,  where  I  reside. 

[JURAT.J  [tilQNATURB.] 

§  301.    Verification  of  Petition. 

Form  No.  69. 

[Insert  venue,  introduction,  and  description  of  deponent,  and 
add]  : 

I  have  read  the  foregoing  petition  subscribed  by  me,  and 
know  the  contents  thereof;  that  the  same  is  [or,  where  such 
papers  are  annexed,  and  that  the  same  and  the  accounts  and 
inventories  hereunto  annexed  are]  true  of  my  own  knowledge 
[except  as  to  the  matters  therein  stated  on  information  or 
[and]  belief,  and  as  to  those  matters  I  believe  it  to  be  true]. 
[Jurat.]  [Signature.] 

§  302.  Verified  Petition. — The  petition  for  the  perpetua- 
tion of  testimony  must  be  verified  by  the  applicant  thereof.^ 

»Hill  V.   Thacter,   2    Code  R.   8;        « Anable  v.  Anable,  24   How.  Pr. 
Anable  v.  Anable,  24  How.    Pr.  92;     92. 
Bogen  T.  Crugor,  7  Johoi.  557.  •  Ooda  0.  P.,  MC  2084. 


PART  THIRD. 

PLEADINGS  OF  PLAIXTIFr. 


CHAPTER  I. 

COMPLAINTS   IN  GENERAL. 

§303.  In  Gsneral.  —  The  compliint,  umler  the  California 
code,  oi'  the  petition,  as  it  is  called  in  some  states,  is  the  first 
pleading  in  the  action,  an  1  the  foundation  for  all  future  pro- 
ceedings. In  modern  practice,  it  is  a  substitute  for  the  declara- 
tion at  common  law,  and  under  the  new  system,  the  plaintiff's 
allegations  showing  his  cause  of  action,  whether  at  law  or  in 
equity,  are  termed  the  complaint.  The  code  as  adopted  in  most 
of  the  states  and  territories  of  the  Union  declares  expressly 
what  the  complaint  shall  contain,  which  is  as  follows :  1.  The 
title  of  the  action,  specifying  the  name  of  the  court  and  the 
name  of  the  county  in  which  the  action  is  brought,  and  the 
names  of  the  parties  to  the  action,  plaintiff  and  defendant ;  2. 
A  statement  of  the  facts  constituting  the  cause  of  action  in  or- 
dinary and  concise  language ;  and  3.  A  demand  for  the  relief 
wuicli  the  plaintiff  claims. 

§  304.  First  Subdivision  of  Complaint. — The  first  8ul>- 
division  of  complaints  under  the  code,  which  provides  what  the 
complaint  shall  contain,  will  be  found  under  the  title  Formal 
Parts  of  Pleadings,  part  second,  chapter  II,  where  the  entitling 
of  a  cause  may  be  found,  with  forms  and  authorities  in  support 
thereof. 

§  305.  Averment  of  Character  and  Capacity. — If  the 
plaintiff  sue  in  a  representauve  or  official  character  or  capacityi 

in 


148  PLEADINGS  OP  PLAINTIFF.  §  306. 

the  chfiracter  must  he  alleijecl  as  well  as  stated  in  the  title.^  It 
is  usual  and  [iroper  in  stating  the  title  to  a  complaint  in  such 
cases  to  add  to  the  name  of  the  party  a  designation  statin*^  the 
especial  cliaracter  which  he  sustains,  as  "A.  B.,  Executor," 
'*C.  D,  Sheriff."  This,  however,  will  not  dispense  with  the 
necessity  of  tlie  averment  of  the  character  in  which  he  sues. 
Standing  alone  in  the  title  would  be  but  a  n  ere  desci  iptio  per' 
sonce.^  Such  an  averment,  and  also  an  averment  that  the  action 
is  brought  by  him  in  such  capacity,  is  sufficient  to  sustain  a  re- 
covery in  that  capacity.^  In  general  a  plaintiff  can  not  sue  in 
two  capacities,  private  and  representative,  in  the  same  action.^ 

§  306.  The  Sams  —  Action  by  Ageat. — The  character  of 
agent  of  a  company  must  be  averred. ^  But  an  agent  can  not 
sue  as  such  unless  specially  authorized  by  statute. 

§  307.  Ths  Same  Action  by  Assignee. — The  character 
of  assignee  must  be  averred  when  plaintiff  sues  in  that  capacity.^ 
But  the  form  of  the  assignment,  or  the  consideration  thereof, 
need  not  be  stated.'  An  I  on  an  assignment  by  a  corporation, 
the  plaintiff  need  not  aver  that  the  directors  were  authorized  to 
make  it.^ 

§  308.  The  Same — Action  by  Company  or  Partnership. 
In  an  action  where  a  member  of  a  company  is  plaintiff  or 
defendant,  membership  must  be  averred.^  And  the  jurisdiction 
and  a  cause  of  acftion  must  be  shown. ^°  And  in  the  state  of 
New  Yo)  k,  where  such  actions  will  lie,  in  actions  by  or  against 
joint  stock  companies,  the  complaint  must  allege  that  the  com- 
pany is  a  joint  stock  company  or  association,  consisting  of  more 
than  seven  shareholders  or  associates. ^^  But  in  an  action  in 
which  the  defendants  were  named  Hull  &  Co.,  the  "  &  Co."  were 
considered  surplusage.^    A  complaint  which   contains  no  other 

iGronMv.  Glnss,18  Barb.  185;  Smith  in  a  representative    and  official   ca- 

V.   Leviiius,  8  N.  Y.  472,  and  other  pacity. 

authorities  there  cited.  *  Tolmif  v.  Dean,  1  Wash.  Ter.  46. 

«  MeiTJtt  V.  Seaman,  6  N.  Y.  168;  •  BuUerflold  v.  Maromber,  21  llow. 

Halleit  V.  Hirrower,   83    Barb.    6.i7;  Pr.  150;   Wheelock  v.  Lee,   15  Abb., 

B.irfit-ld  V.  Pricp,  40  Gal.  635;  Free-  N.  S..  24. 

man  v.  Fulton  Fire  Ins.  Co.,  14  Abb.  ^  Fowier  v.  N.  Y.  Indem.   Tn«.  Co., 

Pr.  407;  Murray  v.  Chtiroh.  58  N.  Y.  23    Barb.   l')l;  Moraiige  v.  Mudge,  6 

621;    B.nsloed   v.    Garlinghouse,   tiO  Abb.  Pr.  243. 

B^trb.  338,  *  Nelson  v.  Eaton,  16  Abb.  Pr.  113. 

8  F'lwler  V.   Westervelt,   40   Barb.  Se&post — Forms  of  Compluiuta:  Ac- 

873;  A^ate  v.  King,  17  Abb.  Pr.  59,  tions  by  Assignees. 

di8tiii<,'uisbin£:  upon  this  point  the  de-  •  Tolmie  v.  Dean,  1  Wash.  Ter.  46. 

cision  in  Gould  v.  Glass,  19  Barb.  179.  "  Id. 

*  Yaies  V.  Kimmel,  5  Mo.  87.     See  "  Tiffany  v.  Williams,  10  Abb.  Pr. 

this  subjt^ct  further  considered  pos< —  204. 

Ft)rms  of  Complaints :  By  and  H«,'ain8t  "  MuUiken  V.  Hull,  6  Cal.  245. 
purtiuulur  pexsuus,  iudividually   uud 


§  310.  COMPLAINTS  IN  GENERAL.  149 

designation  of  the  party  plaintiff  than  the  name  of  a  copartneiv 
ship  firm,  is  deemed  defective. ^ 

§  30y.  The  Same — Action  by  Corporation. — In  New  York, 
where  the  plaintiff  sues  b}'  an  appropriate  corporate  name,  it  is 
not  necessary  to  aver  expressly  that  the  plaintiff  is  a  corpora- 
tion ;  in  such  a  case  there  is  an  implied  averment  to  that  effect.' 
This  holding,  however,  was  upon  a  demurrer  assigning  as  the 
grounds  thereof:  1.  That  it  appeared  from  the  pleading  that 
the  plaintiff  had  not  legal  capacity  to  sue ;  and,  2.  That  it  did 
not  contain  facts  constituting  a  cause  of  action.  The  general 
rule  undoubtedly  is,  that  a  corporation  plaintiff  must  aver  that 
it  is  a  corporation,  the  exception  being  where  the  defendant  is 
estopped  from  denying  the  incorporation,  as  by  having  con- 
tracted with  it  by  its  corporate  name.^  Where  plaintiff  suing 
as  supervisor,  described  himself  in  the  title  of  the  complaint  as 
supervisor  of  North  Hempstead,  and  commenced  it,  "  The 
complaint  of  the  plaintiff  above  named,  as  supervisor  as  afore- 
said, shows,"  etc.,  it  was  held,  on  demurrer,  a  suthcieut  state- 
ment of  the  capacity  in  which  he  sued.* 

The  act  of  incorporation  may  be  pleaded  by  reciting  the  title 
of  tlie  act  and  the  date  of  its  passage.^  But  it  must  be  set  forth 
with  accuracy.^  But  the  short  mode  of  pleading  permitted  by 
this  statute  is  not  intended  to  relieve  corporations  from  prov- 
ing their  existence."''  Where  the  original  act  of  plaintiff's  in- 
corporation is  referred  to  in  the  complaint,  a  vasue  reference 
to  other  general  statutes  affecting  it  does  not  render  the  com- 
jjlaint  demurrable.* 

§  310.  The  Sams — Permission  to  S'te. — There  are  eases 
in  which  by  reason  of  some  special  character,  a  party  can  not 
sue  or  be  sued  except  by  permission  of  the  court.  In  such 
cases,  tlii  obtaining  pe'-mission  to  sue  should  be  all-  cd 
stating  how,    when,  and  from  whom   obtained,  as  in  case  of  a 

1  CHlm<in  V.  Coi?a:rove,  22  Cal.  858;  *  Smith  v.  Lovinns,  4  Sfild.  472. 
Walker  v.  Parkins,    9    Jur.   «ti5;   U  » Gal.  Code    (J.   P..  sec.  4)9;  IT.    S. 
Lhw  Jour.  R.  214,  Q.  B. ;  1  New  Pp.  Bank  v.  Haskins,  1  Johns.  Chs.  182. 
Cas.   199;  2  D.  &  L.  982.     See  po^t,  «  Uuioa  Bank  V.  Dewey,    1  tJaadf. 
Forms  of  Complaint — Actions  by  Uor-  509. 

porntions  and  Partners.  '  Onondasja  County   Bink  v.  Carr, 

2  Union  M.  Ins.  Co.  v.  Osgood.  1  17  Wend. 4iS;  compare  liinkof  VVa- 
Duer,  707;  The  Bank  of  G-enHsee  v.  terviUe  v.  Beltser,  18  How.  Pr.  170; 
Tne  Paichin  Bink,  13  N.  Y.  (}  K'^ni.)  Bink  of  G -nesee  v.  Patcuia  Bank,  13 
81!;   PhcBiix  Bank  of  N.  Y.  v.  Don-  N.  Y.  (8  Kern  )  309. 

nell.  41  linrb.  571.  »  Sun  Mutual   [ns.  Co.  v.  Dwi<rht,  1 

=•  Conn.  Bank  V.  Smith,  17  How.  Pr.  Hill.  50.  St'e  post  Forms  oi  Com- 
R.  467.  plaint — Actions  by  Corporations. 


150  PLEADINGS  OF  PL  aNTEPP.  §311. 

receiver;^  or  of  a  guardiaa  of  an  habitual  drunkard ;2  or  of  a 
lunatic. 3 

§  311.  Second  Subdivision— Statement  of  cause  of 
Ac  ion. — The  complaint  should  state  expressly  and  in  direct  terms 
the  facts  constituting  the  cause  of  action,  and  leave  no  essential 
fact  in  doubt,  or  to  be  inferred  or  deduced  by  argument  from 
the  other  facts  stated,  as  inference,  argixment,  or  hyi  othesis  can 
not  be  tolerated  in  a  pleading."*  A  cause  of  action  being  the 
right  a  person  has  to  institute  and  carry  through  a  iirocceding,^ 
and  as  the  object  of  the  complaint  is  to  present  the  facts  upon 
which  the  action  is  founded  in  ordinary  and  concise  language, ^ 
the  manner  of  the  statement  of  those  facts  becomes  a  mutter  of 
importance,  not  only  in  reference  to  the  facts  which  sliould  be 
alle2;ed,  but  of  such  facts  as  nsel  not  be  alleged  and  which 
ought  to  be  omitted  from  the  complaint. 

It  is  not  in  general  necessary  to  make  it  appear  on  the  face  of  a 
complaint  that  the  court  has  jurisdiction  of  the  person  or  of  the 
subject-matter  of  the  action."'  It  is,  however,  held  that  in  an 
action  against  a  foreign  corporation,  t  he  complaint  must  allege 
that  the  plaintiff  is  a  resident,  or  tha  t  the  cause  of  action  was, 
•  or  the  subject  of  it  is  situated  in  this  state. ^ 

Allegations  in  a  complaint  must  be  consistent  with  each  other, 
and  sujh  as  are  not  consistent,  as  well  as  such  allegations  as  are 
absurd,  and  the  truth  of  which  is  impossible,  may  be  regarded 
as  surplusage.^  An  averment  at  the  end  of  a  complaint  that 
the  defendant  owes  the  plaintiff,  is  a  mere  conclusion  of  law 
and  is  not  admitted  by  demurrer. ^^  The  complaint  need  not  be 
dated,  nor  need  it  state  the  time  when  the  action  was  com- 
menced.^^ But  the  clerk  shall  indorse  on  the  complaint  the  day, 
month,  and  year  the  same  is  filed. ^^ 

§  312,     Waat  Facts  are  to  be  Stated.— Those  facts,  and 

1  Ang<>l  V.  Smith,  9  Vea.  335;  3  «  Cal.  Code  C.P.,  sec.  426. 

Bro.  C.  Cms.  88;  Merntt  v.  Lvdos  16  »  Koe'iig  v.  Nott,  8  Al>l..  Pr.  .^84; 

Weiid.  410;  Chaiitiuiquo  County  Bank  Spencer  v.   Kogers  Loco.  Works,    17 

V.  Ui-l.'v.  19  N.  Y.  876.  Id.   110. 

2  Hnli  V.  Taylor,  8  How.  Pr.  428.  »  House   v.    Cooper,    16   How.    Pr. 

8  VVillifinis    V.  Cameron,  2rt    Barb.  292. 

172;  Grabntn  v.    Scripture,  26    How.  *  Sa^'ramento   County   v.    Bird,    81 

P^  501.     See    post.   Forms    of  Com-  Cal.  ■>«. 

plaints — Actions    by    iiuceivers    and  i"  Millard  v.  Bnldwin,  3  (rray,  4^4; 

Guardians.  Coddiri;;  v.    Manstieid,  7    Gray,  272; 

*  Joseph  V.  Holt.  87  Cal.  250,  citing  18  Id.  :.92. 

Green  V.  I'alniM-.  1')  ;d.  411.  "  Mav^ard  v.  Taloott,  11   Harh  m^, 

*  Meyor  v.  Vau  Colleui,  28  Btirb.  i- <  mI.  ("ode,  st-c.  40'i;  ai;dcoi.e8of 
231.  Nevada,  Idaho,  Arizona,  etc. 


§  312.  COm»LAINTS  IN  GENERAL.  151 

those  only,  shouW  be  stated,  which  constitute  the  cause  of  ac- 
tion;^ and  the  kind  of  relief  should  be  explicitly  demanded.'* 

All  the  material  facts  out  of  which  the  cause  of  action  arose 
ought  to  be  stated,  and  none  others  ;3  and  they  should  be  stated 
in  an  intelligible  and  issuable  form,  capable  of  trial  ;^  but  a  de- 
fective allegation  of  a  fact  may  be  cured  by  default  or  verdict:* 
Thus,  a  statement  in  a  complaint  that  the  contract  sued  on  was 
made  payable  in  a  specific  kind  of  money,  is  an  allegation  of  a 
material  fact.^ 

It  is  laid  down  as  a  rule  that  the  complaint  must  contain  all 
the  facts  which,  upon  a  general  denial,  t  le  plaintiff  will  be 
bound  to  prove  in  the  first  instance,  to  protect  himself  from  a 
nonsuit,  and  sh  )W  himself  entitled  to  a  judgmsnt.'  And  this 
statement  must  be  made  without  unnecessary  repetition. ^ 

The  statute  in  this  respect  is  only  declaratory  of  the  common 
law, 3  and  is  applicable  as  well  to  every  description  of  pleading 
under  the  code,  whether  in  law  or  equity,  all  distinctions  in  the 
form  of  actions  having  been  abolislied.^"  This  rule  governs  all 
cases  of  pleading,  legal  and  equitable. ^^ 

A  complaint  is  materially  defective  if,  to  lay  th^  foundation 
of  a  recovery,  the  proof  must  go  further  than  tlie  allegations  it 
contains.^  It  must  be  so  framed  "as  to  raise  upon  its  face  the 
question  whether,  admitting  tlie  facts  stated  to  be  true,  the 
plaintiff  is  entitled  to  judgment,  instead  of  leaving  that  ques- 
tion to  be  raised  or  determined  upon  the  trial.^3  For  where  a 
complaint  shows  no  legal  cause  of  action  on  its  face,  a  judg- 
ment by  default  can  no  more  be  taken  than  it  can  be  over  a 
general  demurrer.  ^^ 

*  Green  v.  Palm«»r,  15  Cal.  413;  Garvev  v.  Fowler,  4  Id.  665;  4  How. 
Wilson  V.  Cleaveliinrl,  30  Id.  I'.t2;  Pr.  98;  Patf  v.  Kimn-y.  5  Id.  390; 
Kacouillat  v.  Rene,  32Id.  4')o;   Bud-     Turner  v.  C'lmstoik,   fCde  R.  102; 

.dinsjjtonv.  Davis,  6  How.  Pr.  402.  TuL'knr  v.  Rusliton,  2  Id.  59;  Russell 

SBankston  v.    Fanis,    26  Mo.  175;  v.  Clapp,    3  LI.  64;   Mann   v.    More- 

Biddle  V.  Boyoe,  13  Id.  532.  wood,  5  Sand.  564 ;  Li»»nan  v.  Lincoln, 

8  Henlsch  "v.  Porter,    10   Cal.   555;  2Duer,  670;  Green  v.  Puliner,  15  Cal. 

Hicks  V.  Murray,  43  Id.  522;  Biack-  414. 

et  V.  Wilkinson,    13  How.  Pr.  102;  *  Lawrpnce  v.  Millpr.  2  Comst.  258; 

Elwood  V.  Gardner,    45   N.  Y.   349;  N.  Y.  Code,  1 42 ;  Lhws  of  <  )re^'on,  sec. 

Van  Nestv.  Talma<j:e,  17  Abb.  Pr.  99;  65;   Wash.  Territory,  sec. 58. 

Wade  V.  Rusher.  4  Bosw,  537.  *  Gladwin  v.  Stf  bbins.  2  Cal.  103. 

*  Bovce  V.  Brown,  7  Barb.  81;  Los  ^^  Pierov  v.  S.ibin,  10  Cal.  27;  CoP- 
Anireles  v.  Siu'nnret,  50  Cal.  208.  dier  v.  Scliloss,  12  Id.  147. 

'  Russell  V.  Mixer,  42  C<1.  475.     See  ^^  Goodwin    v.    Hammond.    IS  Cal. 

also  Mercierv.  Lewis.  39  Cal.  585;  and  169;  Riddle  v.  Biker.  Id.  302;  Payne 

BevnolHs  v.  Hosmwr,  45  Id.  616.  v.  Tr^adwdl,  16  Id.  243. 

*  Wallace  V.  Eldr.-di,'p.  27  Cal.  49^.  ^  Stanley  v.  Whipple,   2  McLean, 
M  VanSantv.  215;  Bristol  v.   The  85. 

Bpnsspla.T,    etc..  Co.,    9    Barb.    15S;         w  ]  Van  Smtv.  2H. 
Tulluiau    V.  Green,    3    Saadt    4j7:        "  Aboe  v.  Marr,  14  Cal.  211, 


152  PLEADINGS  OF  PLAINTIFF.  §  313. 

If  the  complaint  contains  one  good  count,  though  the  find- 
ings of  fact  are  defective,  it  will  be  sufficient;^  since  a  plaintiff 
can  only  recover  for  such  causes  of  action  as  are  stated  in  his 
compLiint,^  he  must  show  a  good  cause  of  action,^  and  facts 
sufficient  to  constitute  it.* 

§  3 1 3.  A  legations  on  Information  and  Belief. — Allega- 
tions made  upon  information  and  belief  should  be  distinguished 
by  the  phrase,  *'  alleges  upon  information  and  belief."  The 
decisions  on  this  point  have  been  numerous  and  irreconcilable.^ 
Section  524  of  the  new  Code  of  Procedure  in  New  York  settles 
the  question  in  that  state.  It  provides:  "The  allegations  or 
denials  in  a  verified  pleading  must,  in  form,  be  stated  to  be 
made  by  the  party  plea  ling.  Unless  they  are  therein  stated  to 
be  made  up  'U  the  information  and  belief  of  the  party,  they 
must  be  regarded,  for  all  purposes,  including  a  criminal  prose- 
cution, as  having  been  made  upon  the  knowledge  of  the  person 
verifying  the  pleading.  An  allegation  that  the  party  has  not 
sufficient  knowledge  or  information  to  form  a  belief  with  re- 
spect to  a  matter,  must,  for  the  same  purposes,  be  regarded  as 
an  allegation  that  the  person  verifying  the  pleading  has  not 
such  knowledge  or  information."  The  difference  in  the  au- 
thorities upon  this  question  has  grown  out  of  a  very  literal 
application  of  the  rule  that  all  facts  must  be  positively  alleged. 
"When  pleadings  were  not  required  to  be  verified,  the  rule  was 
of  easy  application.  But  this  rule  related  to  the  form  of  the 
allegation  and  not  to  the  knowledge  of  the  par*y.  It  is  evi- 
dent that  a  fact  may  be  averred  positively,  so  far  as  the  f.^rm  of 
the  allegation  is  concerned,  and  yet  the  truth  of  the  allegation 
rests  upon  information  and  belief,  A  failure  to  distinguish  in 
the  pleading  between  facts  stated  on  personal  knowledge  and 
those  stated  on  information  and  belief  must  of  necessity  de- 
feat to  a  great  extent  the  object  to  be  attained  by  veri-fication, 
unless  the  person  verifying  shall  be  held  tiO  liave  made  every 
allegation  upon  per-onal  knowledge. 

The  propriety  and  sufficiency  of  allegations  upon  informa- 
tion and  belief,  otherwise  unobjectionable,  have  not  been  ques- 
tioned in  California,  unless  in  injunction  cases.* 

*  Lii'^ns  V.  ?an  Franoisoo.   28  Cal.  ♦  S'lmmers  v.  FanMi.    ]n   Cal.  847; 

601;  Hay  len  V   Sample.  10  Md.  '215;  M:i<riiiri^  v    Vice,  20  Vlo.  429. 

Statp  V.  (Jainphell.  Id.  724;    .M-arshall  "  S  e  Truscott  v.   DoIp.  7  How.  Pr. 

V.  Bouldiii.  8  Id.  244.  221  ;  8t,  John  v.  Beors.  24  Id.  377. 

'  B'lie.lictv.  Brav.  2  Cal.  256.  «  S^e  PaUpr«on  v.  E'v.  19  Cal.30  35, 

8  RiHspIl  V.  Ford."  2  Cul.  86;    Little  40;  Kirk  v   lihoad-   46  Id.  408:  NY. 

V.  .Mercer,  «  ^o.  216.  iiurbled  L  VVorko  v.£juiitb,4  l>uer,8tt2. 


§  314.  COMPLAINTS  IN  GENERAL.  158 

§  314.  Joinder  of  Causes  of  Action. — The  codes  of  all 
the  states  make  provisions  for  the  joinder  of  causes  of  action. 
Such  provisions  differ  in  their  details.  In  California,  and  in 
most  of  the  other  code  states,  it  is  provided  that  the  plaintiff 
may  unite  several  causes  of  action  in  the  same  complaint, 
where  they  all  arise  out  of:  (1)  Contracts,  expressed  or  implied; 
(2)  Claims  to  recover  specific  real  property,  with  or  without 
damages  for  the  withholding  thereof,  or  for  waste  committed 
thereon,  and  the  rents  and  profits  of  the  same ;  (3)  Claims  to 
recover  specific  personal  property,  with  or  without  damages  for 
the  withholding  thereof;  (4)  Claims  against  a  trustee  by  virtue 
of  a  contract,  or  by  operation  of  law;  (5)  Injuries  to  character; 
(6)  Injuries  to  person ;  (7)  Injuries  to  property.  The  causes  of 
action  so  united  must  all  belong  to  one  only  of  these  classes, 
and  must  affect  all  the  parties  to  the  action,  and  not  require 
different  places  of  trial,  and  must  be  separately  stated.  But  an 
action  for  malicious  arrest  and  prosecution,  or  either  of  them, 
may  be  united  with  an  action  for  either  an  injury  to  character  or 
to  the  person.^  In  construing  this  provision  of  t!)e  code,  it  has 
been  held  that  causes  of  action  arising  out  of  the  same  transac- 
tion, against  the  same  parties,  where  all  the  defendants  are  inter- 
ested in  the  same  claim  of  right,  and  where  the  relief  asked  for 
in  relation  to  each  is  of  the  same  general  character,  may  in  gen- 
eral be  united.^  Thus,  an  action  for  damages  and  also  for  a 
penalty,  in  a  suit  against  a  sheriff  for  a  failure  to  execute  process, 
may  be  united.  ^  So  a  complaint  in  ejectment  may  be  for  two 
separate  and  distinct  pieces  of  land,  but  the  two  causes  of 
action  must  be  separately  stated,  and  affect  all  the  parties  to  the 
action,  and  not  require  different  places  of  trial.'*  And  under 
our  system  a  cause  of  action  in  tort  may  be  united  with  a  cause 
of  action  on  contract,  if  the  two  causes  of  action  arise  out  of  the 
same  transaction.* 

Each  cause  of  action  should  be  separately  and  distinctly 
stated.*  And  each  separate  and  distinct  proposition  of  each 
cause  of  action  should  be  separa'.ely  set  forth,  and  logical  order 
should  be  observed  in  the  statement  of  the  premises,  leavin<j  the 
conclusions  of  law  deduced  therefrom  to  be  drawn  by  the  court. 
The  better   practice   is  to   number    each   cause   of  action,  and 

J  California  Code,  Civil  Proc,  sec.  *  Boles  v.  Cohen,  15  Cal.  151. 

427  *  .Fniies  V.  Steamship  "Cortes,"  17 

«  Variok  v.  Smith,  5  PHige  Ch.  137;  Cm).  487. 

Jon<'sv.  8t'atiiship  "Cortes,"  17  Cal.  *  B 'lesv.  Cohen,  15Ciil.  161 ;  Sturges 

4t57.  v.  Blu  lou,  «  Oiiio  St.  216. 

s  Pearkes  v.  Freer.  9  Cal.  642. 


164  PLEADINGS  OF  PLAINTIFF.  §  315. 

each  proposition  of  each  cnuse  of  action. ^  The  causes  of  ac- 
tion required  to  be  separately  statf^d  are  such  as  by  law  entitle 
the  plaintiff  to  separate  actions,  and  each  of  which  would  be  a 
perfect  cause  of  action  in  itself.^  And  such  statement  should 
begin  with  appropriate  words  to  designate  it  as  such.^  Each 
statement  must  be  complete  in  itself,  or  must  be  made  so  by 
express  reference  to  other  parts  of  the  pleadings.'*  That  refer- 
ence may  be  made  to  other  allegations  wag  the  rule  at  common 
law  ^  A  complaint  seeking  to  recover  on  two  causes  of  action 
must  show  how  much  is  due  on  each.  In  a  word,  each  cause 
of  action  must  be  clearly  and  explicitly  stated,  and  must  be 
perfect  in  itself.^ 

§  315.  Causes  of  Action  Which  can  not  be  Joined. — 
Causes  of  action  arising  under  different  classes,  as  specified  in  the 
provisions  of  the  code  quoted  in  the  preceding  section,  can 
not  be  united  in  one  action.  So,  inconsistent  causes  of  action 
can  not  be  united  in  the  same  complaint."^  Nor  can  the  pleader 
under  the  present  system,  any  more  than  under  the  old,  ask  for 
two  or  more  distinct  kinds  of  relief,  inconsistent  with  or  repug- 
nant to  each  other."  Thus,  an  action  in  ejectment  for  breach  of 
condition,  with  damages  for  breach  of  covenant,  is  deemed  in- 
compatil)le.''  So,  an  action  in  ejectment  against  vendor,  and 
an  equitable  claim  that  vendor  execute  a  conveyance,  can  not 
in  ge  leral  be  united. i** 

A  claim  for  the  possession  of  real  property,  with  damages  for 
its  detention,  can  rot  be  joined  in  the  same  complaint,  under 
any  system  of  pleading,  with  a  claim  for  consequential  damages 
arising  from  a  change  of  road,  by  which  a  tavern-keeper  may 
have  been  injured  in  his  business.^  A  complaint  which  joins  an 
at-'tion  of  "trespass  quare  clausum /regit,"  ejectment,  and  prayer 
for  relief  in  chancery,   will   be  held  bad   on   demurrer.^     So, 

J  Rpnpdi'^t  V.  Seymour,  fi  How.  Pr.  '  1  Van  Sintv.  54,    55 ;  Linden  ▼. 

2^8:   IJliini'hHril  v.'Sirait,  8  Id.  83.  Hepburn,  «  S  mdf.   668. 

2  -^tursr<'8  V.  Burton,  8  Ohio  St.  215.  *  1  Van  Santv.  55. 

8  \i  Mcdict  V.  Seymour.  6  How.  Pr.  •  Underhill  v.  Saratoora  and  Wash- 

29S;  Lippincottv.  Goodwin,  Id.  242.  injjton  K.  R.  Co.,  20  B;irb.  45'). 

*  W  iison  V.  S.  F.    &  H    li.   R.   R.  ^^  Laltin  v.    McCarty.  17  How.  Pr. 

Co.,   41  Cal.  17;  Ritchie  v.  Garrison,  289;  8  Abb.  Pr.  225.     As  to  ejectment 

10  A>)b.  Pr.  246.  and  equitable  relief  penerallv,  see  On- 

•'' F  eeland  v.   McCuUousrh.  1  Den.  derdonk  v.  xVlott.  34  Barb.  10^. 

4^\',  Cro.ikshank  v.  Grav,  20  .Johns.  "  Bowles  v.  Sacramento  Turnpike 

84 1 ;  Gi-iswold  V.  Nat.  h\i  Co.,  3  C  vr.  Co.,  5  Cal.  224. 

9');  Lo.mis  v.  Swick.  3  Wend.  205;  "  iii-jelow  v.Cove.T  Cal. 133;  Nevada 

Porter  V.  Cunimings,  7  Id.  172.  and  Sacramento  Canal  Co.  v.  Kidd,  48 

«  Bnekintrhain    v.    Wt'.ers  14   Cal.  LI    184;   Budd    v.  Binehairi.  18  Barb. 

140;  Clark  V.    Pirlny,    3   Duer,  645;  404;  Coweniioven  v  Cityof  Brooklyn- 

"VAHis.nv.  S,  F.  «&H.  U.  K.  R.   Co.,  38    Id.   »:    Hotohkisg  v.   Auhurn    S 

41  ( ;al.  17.  liochester  li.  R.  Co.,  8B  Id.  bOO. 


§  315.  COMPLAINTS  IN  GENERAL.  155 

claims  for  injury  to  personal  property,  and  for  its  possession, 
can  not  be  united.^  Enforcement  of  equitable  lien,  and  demand 
for  possession  in  replevin,  can  not  be  united.^ 

A  count  in  assumpsit  can  not  be  joined  with  a  count  in  tort; 
and  upon  trial  tlie  plaintiff  may  be  compelled  to  elect  upon 
■which  he  will  proceed.'  But  in  California,  where  both  arise  out 
of  the  same  transaction,  they  may  be  united.  It  is  held  in 
Pennsylvania  that  a  count  in  assuni/ysit  can  not  be  joined  with  a 
count  for  a  deceit ;  and  where  added  after  an  award  of  arbitra- 
tors, and  an  a;)peal  therefrom  by  the  defendant,  under  a 
declaration  containing  a  count  for  deceit  only,  it  was  properly 
stricken  off  by  the  court  on  the  trial.'* 

Counts  in  debt  and  covenant  can  not  be  joined.  Such  a 
declaration  is  bad  on  general  d^murrer.^  A  claim  on  a  demand 
for  money  had  and  received  can  not  be  joined  with  a  claim  to 
compel  the  delivery  up  of  notes. ^  It  seems  that  the  vendor  can 
not  unite  in  the  same  action  a  claim  against  a  broker  for  dam- 
ages for  fraudulent  sale  of  land  with  a  claim  against  a  purchaser 
for  reconveyance  or  accounting.'''  So  a  landlord  can  not  de- 
mand an  injunction  against  a  breach  of  covenant  in  the  same 
action  in  which  he  demands  a  forfeiture  of  the  lease.  Such 
reliefs  ire  inconsistent.^ 

Claim  for  equitable  relief  against  a  corporation  and  one  for 
damages  against  individual  directors  are  incapable  of  joinder.* 
So,  where  the  interests  of  the  defendants  are  several,  as  in  case 
of  the  several  purchasers  of  securities,  in  an  equitable  suit  to 
compel  their  surrender,  the  causes  of  action  against  the  several 
purchasers  cnn  not  be  united. ^'^ 

An  in  lividu  il  and  representative  claim  can  not  properly  be 
joined  in  the  same  action.^ 

Complainant  can  not  u  lite   in  one  bill  a   demand   that  defend- 

»  Sp'iHincr  V.  Sp-\l<linw.  1  Code  R.  S.  C,  5  How.  Pr.  183;  9  N.  Y.  Leg. 

64;   binilU  V.  ilallock,   8   Haw.   Pr.  Obs.  80. 

73.  »  House  V.  Cooper,  30    Barb.  157; 

2  Otis  V.  Sill,  8  Barb.  102.  16  H<.w.  Pr.  292. 

8  Nol.le  V.   L.tly,     50   Pent).    281;  w  L-xington    and    Bi?  Sandy  R.  li. 

CI  I  i  Ids  V.    Biiiik  of  Missouri,  17    Mo.  Co.  v.    Groodman,   2)   Barb.   4i)9;  15 

218;  Liu'k.v  v.  Vandi-rbilt,  10  How.  H  >w.  Pr.  80;  H-ss  v.  Th«  Hutlalo  and 

Pr.    15'.;  see    Ford  v.  M:iUioe,  U    Id.  Ni  ig  ira  FalU  R.  R.  Co.,  29  B  .rb.  391 ; 

91;   Dminioic   v.  Tliomus,  11  Id.  281.  Clark  v.  Coles.  50  How.  Pr.  178;  Aus- 

•  PemisvlvHiiia   R.  R.   Co.    v.    Zug,  tin  v.  Monro,  47  N.  Y,  3G0. 

47  Penn.  480.  i'  Luch.s  v.  N.  Y.   Cent.   R    R.  Co., 

6  Bumbiu-b  v.Koith.  31  Ponn  327.  21    IJarh.  21');  Uall  v.  Fislu-r.    20  Id. 

•  Cahoon  V.  liaiik  ot  Utica.  3  Code  411;  Voorhis  v.  Child's  Kx'r  17  N. 
B  tlO;  Aleger  v.  Scoville,  Q  How.  Pr.  Y.  354;  Ili^ifins  v.  R)ckw>'d.  2  D  ipr, 
131.  6'.0;  Tr.cy  v.  Suydam,  30  BMrb.  110; 

'  Gardner  v.   Ojijlon,  22  N.  Y.  327.     B  1  kb  1:11  v,  IV-.>it,  22    FI  -w.  I'r  2i3; 

•  LiuJja  V.  Hopjuru,  3  riaadi'.  GJ3;     Gnd»oy  v.  Gndley,  33  liaib.  250. 


156  PLEADINGS  OP  PLAINTIFF.  §  315, 

ant  account  inrlividually  for  moneys  received  by  him  with  a 
demand  that  he  account  aa  administrator  or  trustee.^  So,  a 
claim  against  surviving  partners  and  executors  of  deceased  part- 
ners can  not  be  united  unless  the  survivor  is  insolvent.* 

Actions  on  contracts,  injury  to  person  or  injury  to  property, 
are  incompatible  and  can  not  be  united,  as  it  is  essential  that 
they  should  all  belong  to  the  same  class. ^  Causes  of  action  to 
recover  damages  for  alleged  injuries  to  the  person  and  property 
of  the  plaintiff,  and  for  false  imprisonment  of  the  plaintiff's 
person,  for  forcibly  ejecting  him  from  a  house  and  premises 
alleged  to  have  been  in  plaintiff's  possession,  and  keeping  him 
out  of  the  possession  thereof,  can  not  be  united.'*  So  the  tort  of 
a  husband  and  separate  tort  of  wife  can  not  be  united.  ^  A  claim 
for  dan  ages  for  a  personal  tort  can  not  be  united  with  a 
demand  properly  cognizable  in  a  court  of  equity  in  the  same 
action.* 

As  a  rule,  personal  actions  ex  contractu  and  ex  delicto  can  not 
be  united,'''  as  the  distinction  between  actions  growing  out  of 
torts  an  I  those  growing  oat  of  contracts  must  still  be  pre- 
served.^ It  has  been  held,  however,  that  a  party  whose  prop- 
erty has  been  wrongfully  taken,  may  waive  the  tort  and  sue  in 
assami)sit.^  But  whichever  ground  of  recovery  the  pleader 
adopts,  the  substantial  allegations  of  the  complaint  in  a  given 
case  must  be  the  same  under  our  practice  as  were  required  at 
the  common  law.^" 

A  bill  in  equity  is  railtifarious  when  several  matters  are 
united  against  one  defendant,  which  are  perfectly  distinct  and 
unconnected,  or  when  relief  is  demanded  against  several  de- 
fendants of  several  matters  of  a  distinct  and  independent 
nature ^1  So,  in  an  action  agaiu'it  trustees  of  two  separate 
estates.^' 

An  action  against  a  sheriff  and  his  offlo'ial  bondsmen,  alleging 
only  a  cause  of  action  against  him  as  a  trespasser,  and  against 
his  sureties  as  signers  of  the  bond,  and  not  otherwise,  is  a  mis- 

iWarth   V.    Eiddp,  28    How.    Pr.  »  White  v.  Snell,  5  Pick.  425 ;  Boa- 

230;    18    Abb.    Pr.   39);    Laltin»    v.  ton  v.  Otis,  20  Id.  41. 

Laltirijj.   4   Sandf.  Ch.  31;  Bartlelt  v.  «  Knickerbocker   v.   Hall,     3     Nev. 

Hatch,  17   Abb.  Pr.  4i51 ;  see    Burt  v.  191;  Carson  Kiver  Lumbering  Co.  v. 

Wilson,  28  Cal.  632,  639.  Bassett,  2  Id.  249. 

s  .Ml' Vcaii  V.  Scott.  46  Barb.  379.  »  Eversole    v.     Moore,  3  Bush,    49; 

•  Hulco  V.  Thompson,    9    H  >w.  Pr.  contra,   Ladd   v.  llj^jers,    11     Allen, 

113 ;  Mavo  v.  Madden,  4  Cal.  27.  209. 

*McCarty  V.  Fremont,  23  Cal.  197.  i»  Miller  v.    Van   Tassel,    24    Cal. 

'Maloue  V.  Btilwell,    16  Abb.  Pr.  463. 

421.  1'  Wilson  v.  Castro.  31  Cnl.  420. 

«  Mayo  V.  Madden,  4  Cal.  27.  «  Vial  v.  Mott,  87  Barb.  208. 


§  316.  COMPLAINTS  IN  GENERAL.  U7 

joinder  of  causes  of  action.'  So,  a  lessee  and  his  surety  can 
not  be  united  in  the  same  suit.^ 

A  husbuid  and  wife  may  join  in  suit  for  her  services,  but 
when  they  sue  together  he  can  not  join  a  claim  of  his  own.^  A 
suit  by  an  infant  coming  of  age,  seeking  to  avoid  two  separate 
grants  to  different  persons,  and  to  recover  possession,  can  not 
be  brought  in  one  action.* 

A  count  on  contract  made  by  one  defendant  can  not  be  joined 
with  one  made  by  all  defendants.*  Two  claims,  the  one  against 
both  defendants  for  recovery  of  possession  of  real  estate  and 
daraaojes,  the  other  against  one  only  for  rents  received,  no  con- 
nection existing  between  the  same,  can  not  be  joined.^ 

A  complaint  setting  forth  a  liability  on  the  part  of  the  defend- 
ant, partly  joint  ami  partly  several,  is  fatally  defective.''^  Or  a 
chiim  arising  out  of  joint  liability  on  contract,  with  claim  for 
joint  and  several  liability  sounding  in  tort.^  Nor  can  an  ac'ion 
be  maintained  against  a  defendant  as  sole  debtor  on  one  con- 
tract and  joint  debtor  on  another.' 

A  suit  on  a  recognizance  given  before  a  justice,  for  the  ap- 
pearance of  the  defendant  to  answer  a  criminal  charge.  The 
complaint,  after  setting  out  the  cause  of  action  on  the  recogniz- 
ance, avers  that  the  defendant,  S.,  to  secure  his  sureties,  executed 
a  trust  deed  to  T.  of  certain  warrants  and  money.  This  deed 
provides  that  in  case  the  recognizance  be  forfeited  and  the  sure- 
ties become  liable  thereon,  the  trustee  is  to  apply  the  property 
to  the  payment  thereof,  so  far  as  it  will  go.  The  complaint  asks 
to  have  this  property  so  applied.  It  is  a  misjoinder  of  causes 
of  action,  the  trust  deed  having  nothing  to  do  with  the  liability 
of  the  sureties. '° 

§  316.  Splitting  Demands. — At  law  a  creditor  has  not  the 
right  to  a'=;sign  the  debt  in  parcels,  and  thus  by  splitting  up  the 
cause  of  action  subject  his  debtor  to  costs  and  expenses  of  sev- 
eral suits.^'  But  althougli  such  assignment  is  not  good  at  law 
■without  consent  of  the  debtor,  it  is  valid  in  equity,  and  in  an 
action  thereon  it  is  not  necessary  to  aver  consent.     So  a  prom- 

1  Ghirardelli  v.  Bourland,  32  Ctil.        «  Tompkins  v.  White,  8  How.  Pr. 

68r,.  520. 

s  Plialen  v.  Dinp:ee,  4  E.  D.  Smith,  '  Lowis  v.  Acker,  11  How.  Pr.  163. 
879:  Tihbitts  v.  Pf-rev,  24  Hnrb   m.  »  Harris  v.  Si-hultz.  40  Bnrh.  315. 

«  AvognUro  v.  Bull.  4  E.  D.  Smith,         »  Barnes  v.  Smith,  16  Abb.  Pr.  420; 

884,  Wiirth  v.  Rad.le,  28  How.  Pr.  2;'.0. 

*  Voorhies  v.    Voorhies,   24    Barb.       ^°  The  People  v.   Skidmoro,  17  Cal. 

150.  260. 

4  Moore  V.  Platte  Co.,   8   Mo.  467;       "  Marzinu  v.    Pioche,    8  Cal.  536; 

Doan  V.  Holly,  25   Mo.    357;  S.   C,  but  see   McEwen   v.  Johnson.  7  Id. 

26id-  186.  2G0;  Grain  v.  Aldrich,  38  Id.  514. 


158  PLEADINGS  OF  PLAINTIFF.  §  317. 

issory  note  can  not  be  the  foundation  of  two  suits,  each  for  a 
part  of  the  note.^  But  there  is  no  case  or  dictum  requiring  a 
party  to  join  in  one  action  several  distinct  causes  of  action. 
The  plaintiff  may  elect  to  sue  upon  them  separately,^  even  when 
they  belong  to  the  class  of  causes  which  might  be  joined,  pro- 
vided their  identity  is  not  the  same.^  But  an  attorney  suing  for 
services  must  include  his  entire  demand  in  one  action.*  So  a 
joint  cause  of  action  vested  in  two  or  more,  can  not  be  split.* 
But  any  demand  may  be  split  with  the  consent  or  assent  of  the 
defendant.^ 

The  failure  to  join  several  causes  of  action  arising  out 
of  the  same  transaction  may  sometimes  operate  as  a  bar  to 
the  subsequent  assertion  of  the  omitted  demands.'''  Thus  in  a 
suit  in  trover  for  the  recovery  of  bed-quilts,  when  bed  and  bed- 
quilts  were  taken  at  the  same  time,  a  recovery  of  the  quilts  was 
a  bar  to  an  action  for  the  recovery  of  the  bed.**  So  an  action 
for  the  recovery  of  one  barrel  of  potatoes  was  a  b  ir  to  a  suit 
for  the  recovery  of  two  barrels,  all  sold  at  the  same  tirae.^  So,  in 
case  of  sale  of  hay  under  a  contract,  to  be  delivered  in  parcels.^** 
So,  also,  judgment  in  an  action  for  a  breach  of  one  covenant  of 
a  lease  is  a  bar  to  a  recovery  on  the  breach  of  another  cove- 
nant in  the  same  lease,  committed  before  the  first  suit  was 
commenced.  ^^ 

§  317.  Actions  for  D3bt. — A  debt  is  a  sum  of  money  due 
upon  a  contract,  express  or  implied.^^  Standing  alone,  the 
word  "debt"  is  as  applicable  to  a  sum  of  money  which  has 
been  promised  at  a  future  day,  as  to  a  sum  now  due  and  pay- 
able. But  a  sum  of  money  payable  on  a  contingency  does  not 
become  a  debt  till  the  contingency  has  happened. ^^  gg^  the 
•wages  of  a  seaman  is  not  a  debt  till  the  vessel  has  arrived.^* 
So  of  a  contract  between  shippers  and  owners,  whicli  does  not 
become  a  debt  till  the  termination  of  the  voyage. ^^  So  of  a 
covenant  to  pay  rent  quarterly,  from  which  the  tenant  is  liable 
to  be  discharged  by  quitting  the  premises,  or  by  assigning  the 

1  >filler  V.  Covert,  1  Wend.  487,  •  Farrinj»ton  v.  Payne.  15  Johns.  432. 

•  Phillips  V.  Borick,  16  Johns.  140;        •  Smith  V.  Jones,  15  Johns.  229, 
Secor  V,  Sttirgis,  16  N.  Y,  554.  »'  Miller  v.  Covert,  1  Wend,  487. 

»  Stnplt'S  V,  Goodrich,  21  B;irh.  817,        "  Bwndernagle  v.  Cocks,  19   Wend. 

•  Bi-ekiiiiin  V.  Plainer,  15  Biirb.  5oO,     207;    Sluyvesant   v.    Mayor  of  New 
6  Cost.T  v.  N.  Y.  &  JE.  B.  K.  Co.,  6    York,  11  Pai^e  Ch.  414. 

Du  r.  46.  ^  Perrv  v.  WHshburne,  20  Cal.  350. 

•  Cornell  v.  Cook,  7  Cow.  310;  "  People  v.  Ari^'uello,  37  Cal.  624. 
Secor  v.  Sturgis.  16  N,  Y.  569,  "  Wentworth    v.    Whittemore,     1 

»  Phillips  v.  Berick,  16  .lohns.  1??6;     Mass,  471. 
Benderna<:le  v.  Cocks,  19  Wend.  207 ;        »  Davii  v.  Ham.  3  Mass.  33 ;  Froth- 
Hopf  V.  Meyers,  42  Barb.  270.  ingham  v.  Haley,  Id.  68. 


§  317.  COMPLAINTS  IN  GENERAL.  159 

term,  with  lessor's  consent,  or  the  lessee  may  be  evicted  there- 
from by  title  para!n)unt.^  But  a  debt  pay  able  in  any  event, 
but  not  yet  due,  is  a  debt,  debitu  m  in  prceseuti,  solcendum  in 
futiiro.^ 

Th.i  action  of  debt  lies  to  recover  a  certain  specific  sum  of 
money,  or  a  sum  that  can  readily  be  reduced  to  certainty. ^  It 
is  a  species  of  contract  whereby  a  ri;^ht  to  a  certain  sum  of  money 
is  m  itually  acquired  and  lost;"*  or,  more  properly,  the  result 
of  such  contract.^  Counts  in  indebitatus  assumpsit,  heretofore 
kn  >wn  as  the  com  non  counts  ,  may  be  stated  separately,  or  may 
be  all  united  i  n  the  same  complaint.  It  is  only  necessary  to 
aver  an  iadebtednes  s,  and  that  said  indebtedness  has  not  been 
paid. 

The  actio  n  of  debt  is  founded  upon  contract ;  the  action  of  a*- 
sumpsit,  upon  the  promise.^  An  action  of  debt  foun  led  on  a 
statute  is  considered  as  an  action  founded  on  a  specialty,  but 
it  is  not  of  equal  dignity  with  a  debt  due  by  bond.' 

Tie  action  of  debt  will  lie  in  g3nei-al  where  the  sum  is  cer- 
tain, and  it  is  the  duty  of  the  defen  iant  to  p  ay  the  amount  to 
the  plaintiff.^  But  it  may  also  be  brought  for  a  sum  capable  of 
being  certainly  ascertained,  though  not  ascertained  at  the  time 
of  action  br  ought. ^ 

Indebitatus  assumpsit  lies  to  recover  the  stipulated  price  due 
on  a  contract  not  un  ler  seal,  where  the  contract  has  been  com- 
pletely performed.^"  The  action  of  debt  lies  upon  a  judgment,^ 
or  on  a  decree.^  An  indorsee  of  a  note  can  have  debt  against 
the  maker,^'  or  against  a  remote  indorser.^*  The  action  of 
debt  lies  on  a  penalty,  whether  it  be  a  statutory  penalty,  although 
uncertain,^^  if  yje  du  ty  or  penalty  be  capable  of  being  reduced 

1  Wood    V.    Partridge,    11    Mms.  Kn  app,  9  Pet.  541 ;  Hyde  v.  Li'-orse, 

488.  10rttiichC.Ct.408;  Brockett  v.  Ham- 

«  People  V.  Arguello.  87  Ortl.  524.  mond,  2   Id.  66;  Pipsico  v.  Boiiiz,  3 

•1  Bur.  Law  Diet.  4  »0;   8  B I.  Com.  Id.  4i);  to  the   contrary,    Krouse  ▼. 

154;  8  !Slef>h.  Cora  4)1;    Browne  oa  Djbl.iis,   1  Id.   138;  Talbot  v. Selby, 

Actions,   833;    Smith   on  Coutracta,  Id    181. 

497.  "  S'liart  v.  Lander,  16  Cal.  372 ;  se« 

•  2  Bl.  Com.  464.  also  Ex  pMrie  Prader,  6  Id.  239 ;    Law- 
»  2  Stevh.  Com.  187.  rence  v.  Martin,  22  Id.  171 ;    Penning>. 

•  Metcalf  V.  Kobinson,  2  McLean,  ton  v.  Gibson,  16  How.  U.  H.  65. 

863.  ^*  Penninerfonv.Gib'Jon,  16  How.  IT. 

»  United  States  v.  Lyman,  1  Mason,  S  65;  Thompson  v.  Jameson,  1  Crancb, 

482.  282. 

•  Homev.SempK  8  MnLean,  150;  ^  12  Johns.  90;  Willmarthv.  Craw- 
Bank  of  Circleville  ▼.  Iglobart,  6  Id.  ford,  10  Wend.  341. 

668.  i«  Onondaga  Co.  Bank  v.  Bates  S 

»  United  SUtesv.  Colt,  Pet  0.  Ct.  Hill.  53. 

145.  u  United  SUtes  t.  Colt,  Pet.  a  GL 

w  Bank  of  Columbia  t.  Patterson,  7  14&. 
Crancb,  299;  Chesapeake  Canal  Co.  t. 


160  PLEADINGS  OF  PLAINTIFF.  §   318. 

to  acertninty,^  or  for  tlie  penalty  of  an  n^eement.^  And  in  the 
latter  case,  a  sum  less  tlnin  the  penalty  may  l)e  recovered. ^  .Such 
action  lies  to  recover  rem  on  an  expire  1  leise.^  And  so  where 
there  is  a  demise  not  unler  seal,  whether  against  lessee  or 
lessee's  assignee,  debt  for  use  and  occupation  will  lie."  The 
act  of  covenant  lies  wliere  a  party  claims  dam  iges  for  a  breach 
of  covenant,  that  is,  of  a  promise  uiidjr  s  -al,  as  distinguished 
from  actions  of  assumpsit,  or  for  breach  of  contracts  not  under 
seal.^ 

§  318.  Actions  for  Breach  of  CDntract.  — The  requisites 
which  must  carefully  be  observed  in  a  complaint  on  contracts  are: 
1.  The  existence  of  the  contract  sued  upon,  and  its  terms  clearly 
shown  upon  the  face  of  the  pleading;  2.  Performance  or  readi- 
ness to  perform,  and  a  tender  of  performance  on  the  part  of 
the  plaintiff,  must  be  shown ;  3.  The  breach  must  be  clearly 
apparent ;  4.  Special  damages  resulting  from  the  breach  must  be 
specifically  and  clearly  averred. 

§  319.  The  Same  —  Pleading  Contract.  — The  existence 
of  the  contract  should  be  stated,  and  if  it  was  an  alternative  or  a 
conditional  engagement,  or  qualified  by  exceptions,  this  should 
appear  in  the  complaint.' 

If  the  contract  be  in  writing,  it  may  be  pleaded  in  Time  ve)'ba, 
or  the  pleader  may  set  forth  its  legal  effect.  The  former  mode, 
however,  is  preferable  as  being  more  consistent  with  the  present 
system  of  pleading.^  The  rule  which  permits  the  pleader  to 
declare  upon  a  contract  in  Iiobg  verba  must  be  limited  to  cases 
where  the  instrument  set  out  contains  the  formal  contract,  show- 
ing in  express  terms  the  promises  and  undertakings  on  both 
sides. 3 

It  is  by  far  the  better  practice  to  plead  a  contract,  if  it  be  a 
written  contract,  by  setting  forth  a  copy  of  it  or  by  annexing  a 
copy  to  the  complaint, ^°  the  same  as  in  actions  upon  written  in- 
struments for  the  payment  of  money  only.^  If  declared  on  ac- 
cording to  its  legal  effect,  the  defendant  may,  by  the  rule  of  the 
common  law  in  a  proper  case,  crave  oyer  of  the  instrument; 
and  if  it  appears  that  its  provisions  have  been  misstated,  he  may 

»  Bullard  v.  Bell,  1  M«son,  213.  v.  Knowlton,  S  Wend.  374;  Liitwell.  r 

>Martinv.  Taylor,  1  Wash.  C.Ct.l,  v,    Liiinell,    12  Barb.  512;    Crane  v. 

»  Id.  Mavnard,  12  Wend.  408. 

♦Thurabyv.  Plant,  1  Saund.  233;  ^  See  Stoddard  v.  TreadwelK  26  Cal. 

"Woodf.  823 ; Norton  V.  Vultee,  1  Hall,  800;  Murdock  v.  Brooks,  38  Id.  603. 
8&4.  »  .Joseph  V.  Holt,  87  Cal.  253. 

•      *  McKeon  V.  Whitney,  8  Den.  452.         *"  Fairbanks  v.  Bloomfield,  2  Duer. 

•  Steph.  PI.  18.  849. 

»  Hatch  V.  Adams,  8  Cow.  85 ;  Stone        "  Swan  on  PL  204, 


§  318.  COMPLAINTS  IN  GENERAL.  16t 

set  out  the  contract  in  hoec  verba,  and  demur  the  ground  of 
the  variance. ^ 

It  is  not  necessary  that  the  vvords  of  a  di^ed  or  other  written 
instrument  should  be  given ;  the  substance  is  sufficient.  But 
w'latever  is  pleaded  should  be  truly  pleaded.^  For  where  a 
pleading  purports  to  recite  a  deed  or  record  in  hoec  verba,  trifling 
variances,  if  material,  have  been  deemed  fatal.' 

Records  anti  papers  can  not  be  made  a  part  of  a  pleadinsj  by 
merely  referring  to  them,  and  prajing  that  they  may  be  taken 
as  a  part  of  such  pleading,  without  annexing  the  originals  or 
copies  as  exhibits,  or  incorporating  them,  so  far  as  to  form  a  part 
of  the  record  in  the  cause.'*  The  party,  by  pleading  a  record 
with  the  words,  "  as  appears  by  the  record,"  or  '*  as  appears  of 
record,"  proffers  that  issue,  and  it  is  incumbent  on  him  to  main- 
tain it  literally ;  and  this  is  true  where  the  averment  has  refer- 
ence to  particulars  which  need  not,  as  well  as  to  those  which 
must  be  specifically  stated  upon  the  record. ^  In  an  action  of 
foreclosure,  where  the  complaint  has  a  copy  of  the  mortgage 
annexed,  and  to  which  it  refers,  a  correct  description  of  the 
land  in  the  mortgage  is  sufficient  for  the  purpose  of  the  suit.* 

If  time  is  stated,  it  should  be  when  the  debt  became  due, 
though  time  is  only  material  when  it  is  sought  to  recover  interest.' 
Thus,  in  an  action  on  the  case  for  failure  to  perform  a  parol 
contract,  the  time  of  making  it  is  not  material. ^  The  plaintiff 
mny,  in  fact,  allege  any  time  after  the  debt  accrued  and  give 
evidence  of  the  true  time.® 

If  the  time  of  performance  is  not  stated,  the  law  imports  a 
reasonable  time  therefor  ^^  In  assumpsit  on  a  promise  to  pay  a 
debt  due  by  the  promisor,  if  the  plaintiff  would  give  time, 
wlienever  the  promisor  should  be  able,  the  declaration  need  not 
state  that  the  plaintiff  accepted  the  promise.  It  is  sufficient  to 
aver  that  the  time  was  given  and  the  ability  of  the  defendant.^ 

Although  the  forms  of  the  action  of  assumpsit  and  of  the  plead- 
ings therein  have  been  abjlished,  yet  the  distinction  between  an 
express  and  implied  assumpsit  remains,  and  it  is  only  on  the- 

*  Stoddard  V.  Treadwell,  26  Oal.  300.        «  Scull  v.    Hiargins,    Hempst    90; 
'  Ferguson  v.   Harwood,  7  Cranch,    compare    McLaughlin    v.    Turner,  1 

408.  Cranch  C,  Ct.  476. 

»  Id.  »  Moffet  V.  Sackett.  18  N.  Y.  622; 

*  People  v.  De  la  Guera,  2t  Cal.  78.  Farran  v.  Shorwood,  17  M.  227  ;   Wet- 
'  Purcell  V.  Macnamara,  9  E  ist,  160;  more  v.  San  Fnnclsco,  44  Ual.  299. 

"Whittaker  v.   Branson.  2  Paine,  209.        "  Fickett  v.  Brice,  22  H.w.  Pr.  194. 

*  Eraeric  v  Taras,  6  Cal.  lo5.  ^^  Lonsdale    v.  Brown,  4   W-xsh    C. 
'Lyon  V.  Clark,  4   Seld.  148.     But    Ct.  148;   compare  Rice  v.   Barry,  2 

see  Norris  v.  Elliot.  39  CaL  74;  Todd    Cranch  C.  Ct.  447. 
v.  Myr.'8,  40  Id.  85-5. 
£sTiCB,  you  I  —11 


162  PLEADINGS  OF  PLAINTIFF.  §    820. 

ory  of  an  implied  as^iumpsit,  "  inferred  from  the  conduct,  station, 
or  mutual  relation  of  the  parties,"  that  justice  can  be  enforced 
and  tlie  performance  of  a  legal  duty  compelled.  It  is  no  longer 
necessary  in  such  a  case  for  the  plaintiff  to  allege  in  his  com- 
plaint any  promise  on  the  part  of  the  defendant;  hut  he  must 
state  facts  which  if  true  according  to  the  well-settled  principles  of 
law,  would  have  authorized  him  to  allege,  and  the  court  to  in- 
fer, a  pri):nl3eon  the  part  of  the  defendant  in  a  casein  assumpsit.^ 

The  allegation  that  the  defenlant  "made  his  contract  in 
writing,"  imports  a  delivery,^  and  this  need  not  ordinarily  be 
alleged, 3  nor  need  it  be  alleged  that  it  was  accepted.'*  Elxcep- 
tions,  however,  exist  to  this  rule,  as  in  case  of  instruments  in 
trust,  for  benefit  of  others,  where  delivery  should  be  alleged. 
Thus  in  case  where  a  grantor  handed  a  deed  purporting  to 
•convey  land  to  his  son  to  a  third  party,  saying:  "Here  is  a 
writing  in  [my  son's]  favor.  It  is  for  him,  but  I  don't  want  him 
to  have  it  in  his  hands  just  now;  I  want  you  to  take  it  and  keep 
it  in  your  possession  till  a  proper  time  to  produce  it.  If  I 
keep  it  in  my  hands  I  don't  know  who  will  get  hold  of  it,"  and 
gave  his  reasons,  there  being  no  privity  between  the  depositary 
and  the  grantee ;  on  the  death  of  the  grantor,  it  was  held  that 
there  had  been  no  delivery.* 

§  320.  Allegations  of  Promise. — If  there  is  an  express 
promise,  it  should  be  properly  alleged  and  proved.  In  such 
ease,  the  promise  is  the  fact  constituting  the  cause  of  action. 
But  if  the  promise  is  implied  from  the  other  facts  alle^^ed,  it 
need  not  be  averred.  And  in  the  absence  of  an  express  prom- 
ise, every  fact  essential  to  fix  the  liability  of  the  defendant 
should  be  stated ;  for  where  the  plaintiff  does  not  allege  in  his 
pleadings  a  contract  or  agreement,  he  can  not  recover  upon  it.'' 

A  party  who  has  wholly  performed  a  special  contract  on  his 
part,  may  count  upon  the  implied  agreement  of  the  other  party 
to  pay  the  stipulated  price,  and  is  not  bound  to  specialjy  declare 
upon  the  agreement.® 

In  pleading  a  contract  which  the  statute  of  frauds  requires  to 

iRwRti's  PI.  174;  Farroa  v.  Rher-  Wills  ▼.  Wills,  84  Ind.   106;  Farron 

wood,  17  N.  Y.  227;  Byxbiev.  Wood,  v.    Sherwood,   17   N.  Y.  227;  J..rdan 

24  Id.  t)07.  etc.  Co.  v,  Morley,  23  Id.  652;  Irwin 

«  Priiidle  V.  Caruthers.  15  N.  Y.  425.  v.  Schultz,  46  Perm.  74. 

•  Briiikerhoff  V.  Lawrence,  2  Sundf.  *  Allen  v.  Patterson,  3  Sold.  476; 
Ch.  400;  Peets  v.  Bratt,  6  Barb.  6(J0;  Keteltas  v.  Myers,  19  N.  Y.  281 ;  Mof- 
Tompkins  v,  Corwin,  9  Cow.  25-5.  fet  v.  Sackett,  18  Id.  522;  Hosley  v. 

•  G  .zIhv  v.  Price,  Vi  Johns.  267.  Black,  28  Id.  428;  S.  C,  2h  Uow.'  Pr. 
»  Wbilelock  v.  Fi>k<'.  3  Edw.  131.  97;  Todd  v  Hiiiilinijton.  3  West  Coast 

•  Bakor  V.  Haskell,  47  N.  H.  479.  K«p.  331 ;  Steeples  v.   Newton.  7  Or. 
»  Wilkiiu  V.  Btidger,  22  C»l.  285;  110;  Tribou  v.  Strowbridge,  Id.  166. 


§  321.  COMPLAINTS  IN  GENERAL.  163 

be  in  writiti;^,  e.  g.,  &  contract  relating  to  lands — it  is  not  neces- 
sary to  allege  the  facts  relied  on  to  take  the  case  out  of  the 
statute.  It  is  sulfljient  on  demurrer  to  allege  that  a  contract 
was  mide.  Such  an  allej:ation  is  to  be  unljrstood  as  intend- 
ing a  real  contract — something  which  the  law  would  recognize 
as  such.  There  is  no  reason  for  departing,  unler  the  code, 
fro. a  the  former  well-settljd  rules  in  law  ani  equity.^  The  ex- 
istence of  a  writing  in  such  case  is  a  matter  of  eviden  ce ;  it  ia 
not  one  of  the  pleadable  facts.' 

Tjus  a  omplaint  up  )n  an  undertaking  to  answer  for  the 
deb.  of  a  third  person  is  good,  though  it  does  not  allege  that 
either  the  promise  or  the  consideration  was  in  writing.^  And 
the  same  rule  is  established  in  California.^ 

§  321.  Cjasldaratioa  w'lea  mist  b3  AUeg  ed. — The 
essential  element  of  every  contract  being  the  consi  deration,  a 
proper  statement  in  the  complaint  becomes  a  matter  of  great 
importance,  while  an  avermint  of  consideration  in  cas  es  where 
it  is  implie  i  by  law,  becomes  surplusage,  an  d  should  be  avoided. 
The  rule,  however,  is  that  the  considerati  on  must  appear  on  the 
face  of  the  complaint,  either  impliedly,  as  in  cases  of  sealed 
instruments,  where  the  seal  imports  consideration  ;5  or  the  par- 
ticular consideration  on  which  the  contract  is  founded  must  be 
expressly  stated,^  whenever  proof  of  it  is  necessary  to  support 
the  action,'^  for  in  its  absence  no  cause  of  action  can  be  main- 
tained.^ 

In  a  suit  upon  an  agreement  un  der  seal,  the  complaint  setting 
out  the  agreement  in  hcec  verba  need  not  aver  any  considera- 
tion for  the  agreement.  The  seal  imports  a  consideration.^ 
But  on  a  simple  contract  the  law  of  pleading  requires  the  com- 
plaint to  state  the  particular  cons  ideration  for  the  defendant's 
promise  declared  on.^**  And  in  all  cases  when  the  performance 
of  the  consideration  is  a  condition  precedent."  This  rule  has 
its  exceptions,  as  in  cases  of  bills  of  exchange  and  promissory 

«  Etling  V.  Vanderlvn,  4  Johns.  237;  »  Wills  v.  Kempt,  17  Cal.  98;  Mc- 

Meyers  v.  Morse,  15  td.  425.  Oarty  v.  Beach.  10  Id.  461, 

'Livingston  v.  Smith,  14  How.  Pr.  •  1   Ch.  PI.  293;  Doui^lass  v.  Davie, 

490.  2   McOord,  218;  Keaa  v.  Mitchol,    13 

«  State  of    Indiana  v.  Woram,     6  Mich.  207,  and  cases  there  cited. 

Hill,   3.?;    and   also  in  Wrtkefleld  v  '  4  .Johns.  280. 

Greenhood,    where    it  is    held    that  *  Bristol  v.  The  Rensselaer  etc.  Co. 

though  the  contract  must  he  in  writ-  9  B<rl).  158. 

ing  under    a    statute,    yet  it  is  not  •  Willis  v.  Kempt.  17  Cal.  99;  Mc- 

necessary  in  the  complaint  to  show  Carlv  v.  Ketch,  10  Id.  461. 

that  fact,  "  Moore  v.  Waddle,  84  Cal.   145^ 

*  McDonald   v.  Mission    View   H.  Joseph  v.  Holt,  37  Id.  25.3. 

Asao.,  61  OaL  2ia  ^  Moure  t.  Waddle,  84  CaL  146. 


164  PLEADINGS  OP  PLAINTIKP.  §  321. 

notes,  where  the  consideration  is  impliel.^  In  California  any 
written  instrument  is  presnraptive  evidence  of  a  considemtion,' 
and  tlie  burden  of  showing  a  want  of  consideration  sufficient  to 
support  an  instrument  lies  witli  the  party  seeking  to  invalidate 
or  avoid  it.'  Similar  statutes  have  been  passed  in  many  of  the 
States.^ 

To  constitute  a  valuable  consideration  it  is  not  necessary  that 
money  should  be  paid.  It  is  sufficient  that  it  has  been  ex- 
pended on  the  faith  of  the  contract.^  The  acknowledgment  of 
one  dollar  is  sufficient,  whether  actually  paid  or  not.*  The  con- 
sideration of  a  written  instrument  may  be  inquired  into.'  It 
has  been  held  that  the  allegation  of  a  "  good  and  valuable 
consideration"  is  not  sufficient  on  demurrer,  or  to  sustain  a 
judgment  by  default;  yet  it  is  sufficient  to  sustain  a  verdict 
after  trial  upon  the  issues.^ 

If  part  of  a  consideration  be  merely  voidable,  the  contract  may 
be  supported  by  the  residue,  if  good  per  se.  But  if  any  part 
be  illegal  it  vitiates  the  whole.^  It  is  no  objection  that  the 
direct  consideration  moves  to  a  third  person.^"'  Nor  is  it  an  ob- 
jection that  it  moves  from  a  third  partj'  to  the  person  who  seeks 
to  enforce  it.^ 

Tlie  consideration  must  in  all  cases  be  legally  sufficient  to 
support  the  promise  for  the  breach  for  which  the  action  is 
brought.^2  If  there  is  a  benefit  to  the  defendant  and  a  loss  to 
the  plaintiff  directly  resulting  from  the  promise  in  behalf  of 
the  plaintiff,  there  is  a  sufficient  consideration  to  enable  the 
latter  to  maintain  an  action.^'  xhe  court  will  not  inquire  into 
the  exact  proportion  between  the  value  of  the  consideration  and 
that  of  the  thing  to  be  done  for  it.^* 

The  recital  in  a  complaint  of  an  executed  or  past  considera- 
tion   is    not  usually    traversable,  and  requires  little  certainty, 

1  Moore  v.  Waddle,  34  CaL  145 ;  7  Vandenberg.   80  Id.  12 ;  IngersoU  v. 

N.  Y.  Leij.  Obs.  149.  Truebody,  40  Id.  603. 

>  Civil  Code,  sec.  1614.  «  Keau  v.  Mitchell,  13  Mich.  207. 

8  Civil  Code,  sec.  1615.  »  1  Sandf.  Pi.  &  Ev.  187;  Cobb  v. 

*  Wiig:.  Slat.  270,  sec.  6 ;  Caples  v.  Cowdery,  40  Vt.  25. 

Braiiham,   20   Mo.  248;   Iowa  Code,  "  Townley  v.  Sumrall,  2  Pet.  170; 

gees.  2112,  2114;  Ky.  Gen.  Stat.  187.%  but  compare  D' Wolf  v.  Raband,  1  Id 

p.  249 ;  Kans.  Gen.  Stat,  1808,  p.  183 ;  476. 

Ind.  Code  Civ.  Proc.  273.  "  Ravmond  v.  Pritchard,  24  Tnd.  818. 

6  King  V.  Thompson,  6  Pet  204.  ^  I  Ch.  PI.  292 ;  Bristol  v.  Van  Kens- 

"  Dutchman  v.  Tooth,  5  Bing.  N".  C.  splaer  &  Saratoga  R.  R.  Co.,  9  Barb. 

677:  Lawrence  V.  McCalmount,2  How.  158. 

U.S.  426.  "Add.    on  Cont.  1002;    Emerson 

'  See    Code  Civ.  Proc.    sec  1962,  v.  Slater,  22  How.  U.  S.  43. 

and  sec.  1963,  subd.  39;  see  also  Cra-  *♦  1  Pars.  onConL362;  and  author!- 

Tens  y.  Duwey,  18  CaL  43 ;  Peck  t.  ties  there  cited. 


§  322.  COMPLAINTS  IN  GENERAL.  165 

either  of  name,  place,  person,  or  subject-matter,^  although 
it  should  be  known  to  both  parties  at  the  time  of  making  the 
contract  that  the  subject-matter  is  liable  to  a  contingency  by 
which  it  may  be  destroyed.  If  this  contingency  has  already 
happened  at  the  time,  the  agreement  is  without  consideration. ^ 

However  strong  may  be  one's  moral  obligation  to  do  that 
which  he  agreed  to  do,  it  is  only  promises  founded  on  the  per- 
formance of  duties  actually  agreed  to  be  done,  or  Imposed  by 
law,  wliich  are  regarded  in  law  as  binding.  A  proni  se  by  a 
party  to  do  what  he  is  bound  in  law  to  do,  is  an  insufficient  but 
not  an  illegal  c  )nsiderati(m.''' 

In  contracts  imposing  a  restraint  on  one  of  the  parties  con- 
tracting, there  must  not  only  be  a  consideration  for  the  con- 
tract, but  some  good  reason  for  entering  into  it,  and  it  must 
impose  no  restraint  upon  one  party  which  is  not  beneficial  to 
the  other.* 

§  322.  Alleging  Performance  of  Contracts.— In  pleading 
the  performance  of  conditions  precedent  in  a  contract,  it  is  not 
necessary  to  state  the  facts  showing  such  performance,  but  it 
may  be  stated  generally  that  the  party  duly  performed  all  the 
conditions  on  his  part,  and  if  such  allegation  be  controverted, 
the  party  pleading  must  establish,  on  the  trial,  the  facts  showing 
such  performance. 5  The  purpose  of  the  statute  is  t>  avoid 
prolixity  by  permitting  the  plaintiff  to  aver  generally,  by  group- 
ing all  the  conditions  to  be  performed  by  himself  in  a  general 
averment  that  he  has  duly  performed  them  all.^  And  it  is  a 
sufficient  averment  to  allege  that  he  had  "  fully  and  faithfully  " 
performed  the  said  contract  on  his  part."''  This  general  allega- 
tion of  performance  is  confined  t )  conditions  contained  in  con- 
tracts. If  the  performance  of  a  condition  precedent,  not  con- 
tained in  a  contract,  is  necessary  to  create  a  cause  of  action,  the 
facts  showing  such  performance  must  be  alleged. ^ 

It  seems  that  the  word  "  party,"  in  the  provision  of  the 
code  that  "  it  may  be  stated  generally  that  the  party  duly  per- 
formed all  the  conditio  IS  on  his  part,"  means  the  person  or 
pers<ms  by  whom  the  conditions  were  to  be  performed,  and  the 

1  Qobhart  V.  Francis,  82  Ppnn.  78.  ^  Rowland  v.   Phalen,   1    Bosw.  44; 

*  Allen  V.  il  uTiinond,  1 1  P^t.  63.  Griffiths  v.  Hmiderson,  49  Cal.  570. 

»  (.;<ibbv.  Cowdery,  40  Vt.  25.  ^  yp,.ar  v.  Downiufi^,    34  Barb.  623; 

*  (.'aliloiiiia  Stt-mn  Nuv.  Co.  v.  Dye  v.  Dve,  11  Cal.  1H7:  Kliodav. 
Wright.  6  Cal.  •25:-t.  AUmeda  Co..  52  Id.  350;    Pt-ople  v. 

6  (ill.  Code  C.  P.,  8PC.  457.  Jjickaon,  24  Oal.  682;  Hatch  v.   Peet, 

«\V>.)dMjrv  V.    SrtfkridiT,  2  Abb.  28  Barh.  580;     Couch  v.  Ing.Tsoll,  2 

Pr  402 ;  Grarniin  v.  MMcl.a.l...  6  Duer,  Pick  292;  Kane  v.  Hood.  laid.  281; 

516  •  liowlaud  V.  Pbaleu,  1  Jiosw.  43.  Poinroy  v.  Gold,  2  Jlet.  600. 


166  PLEADINGS  OF  PLAINTIFF.  §  322. 

pla'ntiff  in  the  suit  is  not  necessarily  the  person  who  is  the 
party  to  the  contract.  Upon  a  liberal  construction,  the  statute 
means  that  it  may  be  stated  generally  that  the  perso  n  or  per- 
sons by  whom  the  conditions  were  to  be  perf or  med,  have  duly 
performed,  etc.^ 

In  an  action  on  a  contract  by  which  the  plaintiff  had  bound 
himself  to  do  certain  acts,  and  to  procure  third  parlies  to  do 
certain  acts,  the  complaint  alleging  performance  on  their  part, 
in  the  following  form:  And  the  plaintiff  further  s  ays,  that  he 
and  those  on  whose  behalf  the  agreement  was  made  and  entered 
into  by  him  have  fully  and  faithfully  performed  and  fulfilled  all 
and  singular  the  covenants  and  agreements  in  the  said  agree- 
ment contained,  on  the  part  of  the  said  plaintiff  and  those  on 
whose  behalf  the  said  agreement  was  made  and  entered  into  by 
him,  as  aforesaid,  was  held  sufficient.'  Such  general  averment 
imports  a  sufficient  statement  of  being  ready  to  do  all  things 
necessary  in  the  future.^ 

And  where  certain  work  was  to  be  done  by  the  d  efendant, 
for  the  government,  and  certain  things  were  to  be  done  by  the 
plaintiff  to  enable  the  defendant  to  perform  his  contract,  the 
declaration  must  show  that  the  precedent  acts  were  d  one  by  the 
government,  according  to  the  terms  of  the  contract.* 

Performance  must  be  averred  according  to  the  intent  of  the 
parties.  Thus,  a  vendor  of  land  who  sues  upon  an  agreement 
of  sale  containing  a  covenant  on  his  part  that  he  "  will  make  a 
deed  for  the  property,"  must  aver  and  prove  not  merely  hia 
readiness  to  "  deliver  a  dee  1,"  but  that  he  had  a  good  title,  free 
of  incumbrance,  which  he  was  ready  and  willing  to  convey  by  a 
legal  deed.* 

In  an  action  of  covenant  on  a  contract  to  deliver  merchandise 
at  any  place  between  certain  points  on  a  river,  to  be  designated 
by  the  party  to  whom  the  delivery  was  to  be  made,  the  omi-sion 
of  such  party  to  designate  the  place  did  n  ot  prevent  the  other 
from  making  a  delivery  at  any  convenient  point  he  might  select. 
Tlie  declaration  need  not  aver  that  a  place  of  delivery  was  des- 
ignated, nor  that  notice  of  a  place  for  the  delivery  of  the  mer- 
chandise was  given.  An  issue  formed  as  to  such  notice  is  im- 
material. ^ 

*  Rowland  v.  Phalen,  1  Bosw.  43.  '  Washington  v.  Opden,    1   Black. 

■«  [.I.  IT.  S.   450;  Prewett  v.    Vaughn,  21 

»  VVillinmson  PI.  117,   n.;  Bentley  Ark.  417. 

V.  Diwcs,  9  Exch. ''.66.  •  Harlfield      V.    Patton,     Hempst. 

«  U.  S.  V.   Benrd,    6    McLean,   411 ;  268. 
compaie  Hurl  v.  Hose,   Ueuipdt.   2<i8. 


§  324.  COMPLAINTS  IN  GENERAL.  167 

An  averment  of  performance  is  always  made  in  the  declaration 
upon  contracts  containing  undertakings;  and  that  averment 
must  be  supported  by  proof.^  In  pleading  title  to  land  under 
an  act  of  the  legislature  which  prescribes  conditions  upon  the 
performance  of  which  the  title  may  be  recovered,  it  is  neces- 
sary to  aver  a  performance  of  all  the  acts  required  by  the 
statute.^ 

§  323.  Alleging  Non-performance. — When  performance  is 
impracticable,  such  fact  may  be  shown  under  an  excuse  for 
non-performance.3  As  from  sickness  or  death.^  Or  by  act  of 
law. 5  Or  by  casualty  of  fire.^  In  such  cases,  the  excuse  for 
non-performance  must  be  shown.""  If  performance  has  been 
prevented  or  interrupted  by  an  act  of  the  adverse  party,  or  where 
a  waiver  thereof  may  be  inferred,  an  averment  of  facts  consti- 
tuting the  excuse  is  sufficient.^  In  such  cases  performance  need 
not  be  alleged.^  Where  the  conditions  contained  in  the  con- 
tract have  been  modified,  or  plaintiff  has  become  excused  from 
them,  an  averment  of  performance  is  not  proper ;  the  modifica- 
tion or  excuse  should  be  stated.^"  For  under  a  complaint  setting 
out  a  contract  and,  averring  its  performance  by  the  plaintiff, 
evidence  in  excuse  for  non-performance  is  not  admissible;  yet 
this  rule  becomes  of  little  importance  in  view  of  the  power  of 
ammdment  given  to  the  court  by  the  code.^ 

§  324.  Alleging  Concurrent  Acts. — In  an  action  for  breach 
of  contract,  the  performance  of  a  concurrent  act,  which  the 
contract  expressly,  or  by  implication,  devolved  on  the  plaintiff, 
must  be  averred.^  So  where  a  contract  is  executory,  a  per- 
formance, or  tender  of  performance,  or  a  readiness  and  willing- 

1  Bank  of  Columbia  V.  Ha^ner,  1  Hosloy  v.    Black,   26   Hiw.  Pr.  97; 

Pet.  455;  Uiiilf^l  Spates  v.  Aiahur,  5  Holmes  v.  Holmes,  5  Seld.  525. 

Cniiifh   U.  S.  2'>7;  compare  Benle  v.  WQikleyv   M  )rton,  11  N.  Y.  25. 

N>*^vtori,  1  Id.  401;  Savary  v.   Goe,  3  "  (California  Code  C.  P.,   sees.  472, 

W'ish.  140.  473;  soc.  173  of  the  N.  Y.  C.de;   Hos- 

«  People  V.  Jn^kson,  24  Ca.  632.  ].-y  v.   BUck,   2ti    How.    Pr.    97,     Of 

•  VVolfe  V.  Howes,  24  Burb.  174,  the  rule  requiring  full  perform. mce, 
666.  exoppt     where     sufficient    excuse    is 

*  Wolfe  V.  Howes,  24  Barb.  174,  shown,  see  Wolfe  v.  Howes,  20  >f.  Y. 
666;  Pahy  V.  N  .rlh,  19  Id.  341.  197.     And  that  no    recovery    can  be 

*  .Jones  V.  Jud  I.  4  Oomst.  411.  hud   for  part    performance  <>f  condi- 

•  Lord  V.   WhHeler,  1  Gray.  282.  tions  precedent,  consult  Si'kls  v.  PaU 
'f  N''wcomb   V,  Brackett,    16    .Mass.     tison,    14    Wend.    257;    M'.Millan  v. 

ir,6;   Biker  V.  Fuller,  21    Pick.  31S.  Vanlenip.  12    Johns.    I'iS;     K.ah  v. 

8  F.ir  example  nee  Clarke  v.  Cran-  M  tore,  19  Id   887;  Lantry  v.  Puks,  8 

dall    27    Barb.  73;  Cri<t  v.  Armour,  Cow.  63;  O  ikley  v.  Morion,  1  Kern. 

84  Id.  378;    R  vara  v.  Ghio.  3    E.   D.  25. 

Smith,   261;  Little  v.  Mercer,  9  Mo.        "  L^ter  v.   .Tewett,    1    Ken.  4M; 

216  •  Considcraat  V.  Brisbane,  14  HjW  Pr« 

•Oakley   v.  Morton,  1   Kern.   33;  487. 


168  PLEADINGS  OF  PLAINTIFF.  §  314. 

ness  to  perform,  on  the  part  of  the  plaintiff,  must  be  shown  in 
the  complaint.^ 

A  tender  of  performance,  or  a  readiness  and  willingness  to 
perform,  is  a  substitute  for  the  general  allegation  of  perform- 
ance in  such  cases  as  it  may  be  required.  It  may  also  be 
alleged  that  the  plaintiff  offered  to  perform. ^  In  England,  a 
general  averment  of  readiness  and  willingness  is  sufficient.^  So 
also  in  Ohio.'*  And  such  tender  or  offer  of  performance  must 
be  proved. 5  But  an  offer  of  performance  is  of  no  effect  if  the 
the  person  making  it  is  not  able  and  wilUug  to  perform  according 
to  the  offer.  ^ 

In  cases  where  the  performance  on  the  part  of  the  plaintiff 
depends  upon  acts  previously  to  have  been  done  on  the  part  of 
the  defendant,  an  averment  of  readiness  and  willingness  will  be 
sufficient.'  So  where  there  are  mutual  promises,  not  dependent 
on  each  other,  the  omission  to  state  in  the  declaration  perform- 
ance of  that  made  by  the  plaintiff,  is  cured  by  the  verdict. ^ 

If  mutuality  exists  at  the  inception  of  the  contract,  or  at  the 
time  the  contingency  happens,  no  subsequent  changes  can  de- 
stroy the  contract,  if  the  party  has  performed  all  the  conditions 
on  his  part.^  In  an  executory  contract  for  the  sale  of  an  article 
to  be  paid  for  on  delivery,  the  obligation  for  one  party  to  pay, 
and  the  other  to  deliver,  are  mutual  and  dependent ;  and  the 
seller  must  show  that  he  was  ready  and  offered  to  deliver  tlie 
goods. ^°  But  where  there  has  been  part  performance,  a  special 
alleojation  is  not  necessary.^  In  cases  where  mutu  dity  exists 
in  the  conditions  of  a  contract,  neither  party  can  ra:iintain  an 
action  against  the  other  for  a  breach  of  contract,  without  shew- 
ing  performance  or  tender  of  performance  on  his  part.^^     But 

»B«rron   v.    Frink,    80    Cal.    4<^6;  »  Sui'd.  on   Vend.  104;  1  Ves.  2!S; 

Englander  V.  Rogers,  41  Id.  220:  V>tn  Monlock  v.  Biiller,  10  V«s.  jmi.  81"); 

Schniok    V.    Winne,    16      Barb.    94;  Lawronson  v.  Butler,  1  Sclionles  <5fc  L. 

Beecher  v.  Conradt,   3    Kern.     HO;  19;  Walton  v.  Coulson.  1  McLo  m,  UO. 

BroMSon  v.  Wiman.  4  Seld.  188;  Tin-  "  B  irron  v.  Frink.  S^Gil  48^;Gib- 

ney  v.  Ashley,  16  Pick.  •54*5.  bon^  v.  Scott,  1.5  11.  2H4;   I  S  iiid.   PI. 

*  See  Williams  v.  Healev,  3  Den.  &  Ev  190;  Ensjlander  v.  lio'^ers,  41 
863;  Crandall  v.  Clark,  7  Barb.  Iti9;  Cal.  420;  Con^id^rant  v.  Brisbane.  14 
Clark  V.  Crandall,  27  Id.  7R.  How.  Pr.  4^7;  Diinha-n  v.  P.'ttpo,  4  K. 

«Ru3tv.   Nottrids:e,  1   Ellis*    Bl.  D.   Smith,   600;   Fickett  v.   Brioe,  22 

(Q.  B.)  09;  Bentley  v.  Dawes,  9  Exch.  How   Pr.  194. 

Welsh.  H.  &  G.  666.  "  Grant  v.  John«on. -5   Birb.    161; 

*  Swan  on  PI.  206;  Nathan  v.  Lewis,  Wallis  v.  Wirren,  H  Liw  -I  >ur.  Rep. 
1  Handy.  242.  Ex.  449;  14  Law  Times,  108;  7  Dowl. 

»  Goodwin  v.  Lynn,  4  Wash.  0.  Ct.  «&  L  60;  4  Ex.  364. 

714.  "Porter    v.  Rose,   12   Johns.   209; 

6  Cal.  Civil  Code,  sec.  1493.  Gazley  v.  Price,  16  M.  2»)7;  Parker  v. 

»  West  V   Emmons,  5  .1  .hns.  179.  Parmele,  20  Id.  130;  Toppinir  v.  liuot, 

'  Corcoran  V.  Dougherty,  4  Craiteh  6  Cow.  404;   Walden  v.  Davison.  11 

0.  CU  205.  W«nd.  67 :  Lester  v.  Jo  welt,  11  N.  Y. 


§  325.  COMPLAINTS  IN  GENERAL.  169 

where  the  covenants  of  an  agreement  are  inrlopendent,  the 
plaintiff  can  not  support  his  action  as  to  thera  without  sh  )wing 
performance  of  every  affirmative  covenant  on  his  part,  and  in 
such  a  case  it  is  competent  to  the  defendant  to  prove  a  breach 
of  such  as  are  negative.^ 

Thus  where  it  was  agreed  that  plaintiflf,  in  consideration  of 
the  payment  of  a  certain  sum  and  the  delivery  of  certain  notes 
on  a  certain  day,  would  malie  a  certain  assigamsnt  to  defend- 
ant, plaintiff  in  an  action  to  recover  the  money  need  not  allege 
performance  or  offer  of  performance.* 

But  if  notice  is  necessary  to  give  a  right  of  action,  such  no- 
tice must  be  specially  averred.^  And  an  aveiraont  of  facts 
"  which  defendant  well  knew  "  is  not  sufficient.^  0:herwise  if 
knowledge  only  is  necessary  to  fix  the  liabihty ;  as  for  keeping 
mischievous  animals;^  against  a  municipal  corporation  for  de- 
fect in  a  grating  over  an  area  in  a  sidewalk,^  and  other  like 
cases. 

So,  also,  whenever  a  request  is  necessary  to  give  a  party  a 
right  to  sue,  it  must  be  specially  averred ;'  and  where  the  stat- 
ute prescribes  conditions  precedent  to  the  acquirement  of  a 
right,  the  performance  of  those  conditions  must  be  speciiically 
averred,  and  the  facts  showing  such  performance  must  be 
pleaded.^ 

But  in  an  action  by  a  purchaser  to  recover  money  paid  in  part 
execution  of  a  contract  rescinded  by  the  vendor,  an  allegation 
of  tender  or  readiness  to  pay  the  whole  price  is  not  necessary.' 
So,  on  a  contract  for  wheat  to  be  dtjivered  on  demand,  it  was 
not  necessary  to  aver  a  tender.^"  And  under  an  averment  of 
tender,  the  plaintiff  may  prove  a  waiver  of  it  by  defen  lant.^^ 

§  325.  Alleging  Breach  of  Contract. — A  complaint  for 
breach  of  contract  must  state  a  breach  in  unoqniv  cal  lan- 
guage.^*    A  general  allegation,   however,   will  be   sufficient  to 

458;   People  v.  Edrwonds,  15   Bxrb.  •  McGinity  v.  Mayor  of  New  York, 

859;  Culv.TV.  Bursjher,  21    II.  321;  5  Daw r,  674. 

Daud  V.  Kins;.  2  Pick.  155;  Pickett  v.  ''  Rimsev  v,  Waltham.  1  Mo.   395; 

Brice,  22  Uuw  Pr.  194;  to   the   sume  Fenier  v.  Wiliiann.  37  Harb.  9. 

effect,  Frev  v.  J»hnson,  Id.  316;  Et»g-  ^  People  v.  Jack-«on,  21  ('al.  6^2. 

lander  v.  Roj^ers,  41  Cal.  420.  '  Main  v  Kins:.  8  Bai-h.5:^5;  Kaiicher 

1  Webstdr  v.  Warren,  2   Wash.   0.  v.  Goodman,  29  Id.  316;  McKniirhtv. 

Ct.  456.  Dunlop.  4  Id.  36. 

»  Smith  V.  Betts,  16  How.  Pr.  2'il.  J"  Crosby  v.  Watkins,  12  CmI.  85. 

»  Bensiey   v.   Atwill,   12   Cal.  2:^1;  "  Holmes  v.  H..linH3.  5  Seld.  52). 

Colt  V.  R<)ot,  17    Ma8!».  229;  Hobart  "  I  Van  Santv.  222;  Moor<'V.  B^sse, 

V.  Hilliard,  11  Pif'k.  144.  80    Cal.   670;   So'^on-k    v.   N'tvlor,    2 

*  Colchpster  V.  Brooke,  7  Q.  B.  339;  Duer.  675;  Van  Schaick  v.  Wiune,  16 

8.  C  ,  58  Ei'g.  C'  ni.  L.  339.  Burb.  89. 

»  Faircbild  v.  Beutley,  30  Barb.  147. 


170  PLEADINGS  OF  PLAINTIFF.  §  326. 

admit  proof,  and  will  only  be  obnoxious  to  a  motion  to  render  it 
more  certain.^ 

Thus  where  the "  covenant  describes  a  specific  act,  the  breach 
may  be  averred  in  the  language  of  the  covenant ;  but  if  a  num- 
ber of  acts  are  included  in  one  phrase,  the  complaint  must  set 
forth  the  breach  of  each  particular  act  upon  which  the  plaintiff 
relies  with  particularity. ^  F^r  when  a  party  relies  upon  any 
breaches  of  an  agreement  as  the  foundation  of  an  action,  he 
must  set  forth  in  his  pleading  suffljient  of  the  agreement  to 
make  it  appear  to  the  court  that  the  breaches  complained  of  do 
actually  exist,  and  to  what  extent.^  If  the  promise  contained 
an  exception  or  proviso,  it  must  be  stated.^  And  on  a  contract 
containing  various  undertakings;  the  plaintiff  complaining  of 
the  breach  of  one,  thereby  waives  any  right  as  to  th  e  otliers.^ 

§  326.  Alleging  Special  Damages.  —  For  the  breach  of  a 
contract  an  action  lies,  tho  igh  no  actual  damages  be  sustained.* 
And  damages  which  materially  and  necessarily  arise  from  the 
breach  of  the  contract  need  not  be  stated,  as  they  are  covered 
by  the  general  damages  laid  in  the  declaration;  but  special 
damages  must  be  specially  stated.'  It  is  sutficient,  so  far  as  the 
demurrer  is  concerned,  to  aver  in  tiie  complaint  the  contract, 
the  breach  complained  of,  and  the  general  damages.*  But  the 
omission  to  aver  specially  the  damages  laid  in  the  complaint,  is 
waived  by  going  to  trial  without  obj.'ction.^  In  an  action  for 
special  damages  for  injuries,  suirh  damiges  as  are  the  natural 
although  not  the  necessary  result  of  the  injury  must  be 
specially  stated,  and  the  facts  out  of  which  they  arise  must  be 
specially  averred  in  the  complaint.^"  Thus  a  jury  can  not  give 
compensation  for  loss  of  time,  remunoration  for  wa^es  pai.l,  etc., 
unless  there  is  an  allegation  in  the  complaint  as  to  these  matters.^ 

The  want  of  any  averment  of  special  damages  can  not  be 
reached  by  demurrer.  Such  averm^'ut  is  only  neccssaiy  where 
the  right  of  action  itself  depends  upon  the  special  injury  re- 
ceived.^^    Matters    in    aggravation    of    damages    need   not  be 

1  Trimble  v.  Stilwell,  4  E.  D.  Smith,  *  B  irber  v.  Caztilis.  30  Cal.  92. 

612.  *  .M-ary  V.  Bustwi.k,  2  Hilt.  514. 

a  Wolfe  V.  Luy«tpr,    1    Hull,    146;  '"  Stevenson  v.  Smiili,  28  Cm  1.    102; 

Brown  V  SU'bbiiis.  4  Hill.  ]o4.  Colo  v.  Swnnstnn,  I  Iil.  61;  Squicrv. 

3  Lynch   v.  Murray,   21    How.   Pr.  Gould,  14  Wend,  159;  Sltantr  vW'hite- 

154.                               '  b.-ad.    12    Id.   04;     1   Chit.'    IM.    871; 

♦  Lnthnm  v.  Riitb»y.2  Barn.  A  Cre«s.  ^^pdir.  on  Dam.  rt7;  Say  <>m  Dam.  313 
20;  Jonf's  V.  Cowlev,  4  Id.  440;  Tem-  '■rui>lumiie  V\  aier  Co."  v.  Columbia 
panv  V.  Hurnand,  4  Camp.  20.  m'  d     Stanislaus    Water  Co.,    10    Cal. 

^  Cliiiui  V.  Hamilton,  Hcmpst.  438.       l'.>3. 

•  MrCarlv  v.  IJeach.  10  Cal,  4t)!.  "  Dabovich  v.  Empric.  12  Cil    171. 
»  Baa  V.  Sieelw.  3   VV'ttsb.  U.  Ct  381.        »«  McCarly  v.  iJeucb,  10  Cal.  461. 


§  327.  COMPLAINTS  IN  GENERAI*  171 

alleged;  the  quo  animo  may  be  proved  without  being  pleaded,^ 
and  therefore  should  not  be  pleaded. ^ 

§  327.  Allegations  in  Actions  for  Injuries  Resulting 
from  Nsgligeace. — Negligence  is  the  omission  to  d.^  some- 
thing which  a  reasonable  man,  guided  by  those  considerations 
which  ordinarily  regulate  the  conduct  of  human  affiirs,  would 
do;  or  doing  something  which  a.  prudent  and  reasonable  man 
would  not  do.  It  is  not  absolute  or  intrinsic,  but  is  always 
relative  to  some  circumstances  of  time,  place,  or  person. ^  The 
pru  lence  and  propriety  of  men's  actions  are  not  ju  Iged  by  the 
event,  but  by  circumstances  un  ler  which  they  act.  If  they  con- 
duct themselves  with  reasonal)!e  prudence  and  gool  judgment, 
they  are  not  to  be  made  responsible  because  the  event,  from 
causes  which  could  not  be  foreseen  nor  reasonably  anticipated, 
has  disappointed  their  expectations."*  Where  the  safety  of 
human  life  is  in  question,  a  very  high  degree  of  care  is  required. ^ 
But  a  casualty  happening  without  the  will  and  without  the  neg- 
ligence or  other  default  of  the  party,  is,  as  to  him,  an  inevita- 
ble casualty.^  Ordinary  care  or  common  prudence,  is  such  a 
degree  of  care  and  caution  as  will  be  in  due  pr  >portion  to  the 
injury  or  damage  to  be  avoitled.'^  Thus,  the  question  of  negli- 
gence must  depend  upon  the  facts  of  the  case,  and  it  is  not  an 
abstract  question  of  law.^  Hence  it  will  not  be  necessary  in  a 
complaint  to  aver  the  degrees  of  negligence  in  each  case,  as 
they  are  matters  of  proof  to  be  decided  from  the  facts  sated.^ 
Negligence  implies  gross  as  well  as  onlinaiy  negligence ;  and 
a  general  averment  of  negligence  is  all  that  is  required.^"  If  an 
employment  requires  skill,  failure  to  exert  it  is  culpable  negli- 
gence, for  which  an  action  lies.^^ 

In  New  York,  in  an  action  for  damages  caused  by  negligence, 
it  must  appear  that  the  plaintiff's  acts  or  omissions  did  not  con- 

^  Rii3tell  V.  Maoqnister,  1  Camp.  49  *  Baxter  v.  Sppond  Ave.  R.  R.  Co., 

SlHok   V.  MoChesnev,  2   Yates,    47:^;  SO  H.w.  Pr.    219;    VVelliiif^  v.  Judge, 

"VN'allis  v.M.-MSe,  3  Binnev.  646;  Kan  40  Birb.  193. 

V.  .McLaUi?tilai>.  2  Sersr.  &'  R  469.  »  Nullon  v.  We-itera  It  R.  Co.,  15  N. 

«  Wariie  v.  Cmsweil.  2  Swrk.  4'.7;  Y.  4U;   35  Barl..  8^9. 

Moloney  v.  Dows,  lo  H.w.  Pr.   2fi5;  i»  Oldfi -id  v.  N.  Y.  and  Harlem  R 

see,  h<twever,  Root  v.  Foaier,  9  Id.  37;  R.  Co..  4  Kern.  310. 

*  Br.-wer  v.  Temple,  15  Id.  28H.  "   Ihe  New  World  v.  Kincj,  16  How. 

«  Richardson  v.  Kier,  '6\  Cal.  63.  (U.  S.)  469,  in  which  ijise  th«   ih.  oi-y 

*  The  Anieihyst,  Davies,  20;  2  N.  ot  the  three  dt'ujrees  of  nej?li<j< me  13 
T.  Leg.  OI'S.312.  examined.     As    to    what    consiilutes 

^  Castle  V.  Diiry^a,  32  Barb.  4*^0.  neiiligetu-e.  see  also  Needhnm  v.  S.  F. 

•  1  T.  li.  27 ;  H..dirs..n  v.  Uexler,  1  &  S.  J.  R.  R  C".,  37  ChI.  40);  8chier- 
CnmchC.  Cu  109;  The  Lotty,  Olc.  hold  v.  N.  i{.  &  W.  R.  K.  C-..  40  Id. 
829.  447;   Karr   v.  Pnrks.   40  Id.  l^S;  Mc- 

I  Ernst  V.  Hudson  River  R.  R.  Co.,  Coy  v.  Cal.  P.  K.  K.  Co.,  40  Id.  632. 
85  N.  Y.  9. 


172  PLEADINGS  OF  PLAINTIFF.  §  328. 

tribute  in  any  degree  to  the  result.^  The  rule  that,  where  the 
injury  has  been  caused  by  the  negligence  of  the  party  injured, 
he  has  no  redress,  has  been  commented  on  and  qualified  in 
Califoriiia;*  where  it  is  also  held  that  the  negligence  which 
disables  a  plaintiff  from  recovering  must  be  a  negligence  which 
directly  or  by  natural  consequence  conduces  to  the  injury.  It 
must  have  been  the  proximate  cause,  that  is,  negligence  at  the 
time  the  injury  happened. ^ 

It  is  not  necessary  to  allege  in  the  complaint  in  an  action  for 
damages  to  either  person  or  property  that  the  plaintiff  is  with- 
out fault, ^  as  it  may  fairly  be  presumed  that  the  plaintiff  exer- 
cised usual  care  for  his  own  safety.*  The  right  to  recover 
damages  for  injuries  to  the  person  depends  upon  two  concur- 
ring facts:  1.  The  party  claimed  to  have  done  the  injury  must 
be  chargeable  with  some  degree  of  negligence,  if  a  natural  per- 
son; if  a  corporation,  with  some  degree  of  negligeu'^e  on  the 
part  of  its  servants  or  agents;  2.  The  party  injured  must  have 
been  entirely  free  from  any  degree  of  negligence  which  con- 
tributed proximately  to  the  injury. 8  Where  negligence  consists 
in  the  omission  of  a  duty,  the  facts  relied  on  as  implying  tliat 
duty  must  be  alleged.'  The  allegation  that  the  injury  con- 
tinued to  be  done  from  time  to  time,  from  the  date  of  the 
wrongful  act  until  the  commencement  of  the  suit,  cluitning 
special  damages  as  a  matter  of  aggravation,  need  not  state  the 
time  or  times  when  the  damages  were  sustained,  as  the  legal 
effect  of  tlie  allegation  is  that  they  were  sustained  when  the 
wrongful  act  was  committed,  and  on  divers  days  between  that 
time  and  the  commencement  of  the  suit.^ 

§  328.  Jadgmsnts,  how  Pleaded.  — In  pleading  a  judg- 
ment, and  especially  of  a  court  of  general  jurisdiction,  it  is  not 
necessary  to  state  the  facts  conferring  jurisdiction,  but  such 
judgment  may  be  slated  to  have  been  duly  given  or  made,  and 
if  controverted,  the  facts   conferring  jurisdiction  must  be  estab- 

iWilfls  v.H.  Riv.R.Tl.Co.,  24  N.Y.  » Johnson  v.  Hudson    Rivor    R.  R. 

480;  H  II.)  w.  Pr  97;  Gorusch  v.  Cree,  Co.,  20  N.  Y.  65. 

8  Com.  Ht-nch  (N.  S.).  572.  598;  Uela-  *  See  oishs  cited  above, 

field  V.  Union  bVrry  Co.,  10  Busw.216.  »  City  of  BatTalo  v.  HollowHy,  7  N. 

*  liicliin«)nd  V.  Sacraineuto  Val.  R.  Y.  4''8:  Tnvlor  v.  All«iitic  Alutual 
R.  Co..  ISCiil.SSl.  Ins    Co.,  2  'Bosw.    10  i;    Congreve   v. 

"Kline  v.  C.  P.   R.  R.  Co.,  37  Oil.  MoPiran,  4    Duer,  489;    Seyinonr    v. 

400;   Ni'edhMrn  v.  S.  F.  &  S.  J.  U.  R.  Mnddox,  !«  Q    B  32»i;  S.   C.  71    Eng. 

Co.,  37    M.   409;   Flynn   v.  Same,   40  Com.  L.  R.  32ii :  and  see  MtGinity  v. 

Id.  14;  M:inmus  V.  Champion,  Id.  121 ;  M  lyor,   etc.,   5  Dwr.    674;    Gregory 

Hearn.'  v.  S.  P.  R  li.  Co..  50  Id.  482.  v.  OMksmilh,  12  H..w.  Pr.  184. 

*  W.tlie  V.  Sii|)..rvi^.irs  of  Richmond,  *McComiel  v.  Kibbe,  33  111.  175. 
11  Abb.  Pr.  270;  19  Uow.  Pr.  370. 


§  329.  COMPLAINTS  IN  GENERAL.  173? 

lis^ied  on  the  trial  ^  In  California,  un^lerthe  section  cite'l  below, 
this  rule  applies  to  all  judgments  or  other  deter  ninations  of  a 
court,  officiT,  or  board.  It  was  formerly  held  that  in  pleading 
thejndgm'ut  of  a  court  of  limited  jurisdiction,  it  is  neces- 
sary to  set  forth  the  facts  which  give  jurisdiction. ^  as  the  law 
presumes  nothing  in  favor  of  tlieir  jurisdiction. ^  The  decisions 
in  New  York  seem  to  bear  the  other  way  on  this  point,  and 
would  appear  to  conform  more  nearly  to  the  language  of  the 
statute  than  the  early  California  decisions.  There,  it  seems,  it 
is  no  ion jrer  necessary  to  state  the  facts  conferring  jurisdiction 
on  a  court  or  officer  of  limited  jurisdiction.*  If  it  be  denied, 
juris'lic'im  and  all  iurisdictional  facts  must  be  proved.^  So 
held  in  pleading  an  insolvent  discharge.' 

In  pleading  a  judgment,  the  precise  words  of  the  record  need 
no'  1)6  observed,  and  surplusage  or  immaterial  omissions  in 
matters  of  substance,  in  such  pleas,  are  attended  with  no  other 
cotis'^quences  than  in  other  cases.  But  in  matters  of  descrip- 
tion, the  record  produced   must   conform  strictly  to  the  plea.' 

But  this  section  does  not  refer  to  foreign  judgments,  and  a 
general  averment  of  jurisdiction  of  a  foreign  tribunal  is  not 
sufficient;^  and  therefore  facts  showing  jurisdiction,  both  of 
person  and  subject-matter,  must  be  stated.^  But  in  California, 
where  the  transcript  of  the  judgment  shows  the  jurisdiction  of' 
the  court  on  its  face,  it  is  not  necessary  to  aver  jurisdiction.^* 
A  julgment  of  the  probate  court  may  be  pleaded  in  the  mode 
prescribed  by  the  statute.^ 

§  329.  Statutes,  how  Pleaded. — Pleading  a  statute  is 
merely  stating  the  facts  which  bring  a  case  within  it,  without 
making  mention  or  taking  any  notice  of  the  statute  itself. 
Counting  upon  a  statute  consists  in  making  express  reference  to 
it,  as  by  the  words,  "against  the  form  of  the  statute,"  or  "by 

»  California  Code  Civ.  Proc.sec.  456;  Pr.    133;  Carter  v.   Koezley,  II  Id. 

N.  Y.  Code.  sec.  161;  Nevada  Code,  147;  per  contra,    McDonald  v.  Katz, 

sec.  69;  Idaho,  sec.  59;  Arizona,  sec.  31  ChI.  1i;9. 

69;  Oregon,  sec  85;  Low  v.  Burrows,  ''  Whitaker  v.   Bramson,   2   Paine, 

12   Cal.    181;  Hanscom  v.  Tower,  17  209;  compare    Riddle    v.    Potter,    1 

Id.   518;  Hunt  V.  Dutcher,  13   How.  Crunch  C.  Ct.  288. 

Pr.  638.  *  Hoilister  v.     Hoi  lister,   10    How. 

*  Smith  V.  Andrews,  9  Cal.  652.  Pr.   539;  citing  Barnes  v.  Harris,   3 
»  Swain  v.  Chase,  12  <  ^al.  28:? ;  Row-  Barb.  603 ;  Avres  v,  Covill.  18  Id.  260; 

ley  V.  Howard,  23  Id.  40? ;  McDonald  B-^met  v.  Wisner,  1   N.  Y.  Code   R. 

V.  Katz,   31  Id.   169.     But  see   Cal.  (N.  S.)  143. 

Code  Civ.  Proc,  sec.  456.  •  McLaughlin  v.  Nichols,  13   Abb. 

*  Wheeler  v.  Dakin,  12  How.  Pr.  Pr.  244 ;  but  in  Halsted  v.  Black,  17 
542.  Abb.  227,  the  contrary  is  held, 

»  Id.  w  Low  V.  Burrows,  12  Cal.  181. 

*  Livingston  v.  Oaksmith,  18  Abb.        ^  Beaua  v.  Emanuelli,  86  CaL  117. 


174  PLEADINGS  OF  PLAINTIFF.  §    329. 

force  of  the  statute  in  such  case  made  and  provided.'*  Eecitirtg 
a  statute  is  quoting  or  stating  its  contents,  and  either  form  may 
be  adopted  by  the  pleader.^  In  pleadfng  a  private  statute,  or 
right  derived  therefrom,  it  shall  be  sufBcient  to  refer  to  such 
statute  by  its  title  and  the  day  of  its  passage,  for  the  court  to 
take  judicial  notice  thereof. ^  An  averment  that  the  statute  was 
passed  is  sufficient.^ 

In  pleading  an  act  of  the  legislature,  the  title,  being  no  part 
of  an  act,  need  not  be  recited  ;*  but  where  a  party  refers  to  an 
act  merely  by  the  title,  he  thereby  makes  the  title  material,  and 
must  recite  it  correctly.*  Bat  when  a  pleader  wishes  to  avail 
himself  of  a  statutory  privilege  or  right  given  by  particular 
facts,  he  must  show  the  facts ;  and  those  facts  which  the  statute 
requires  as  the  foundation  of  the  action  must  be  stated  in  the 
complaint.^  It  is  safest  to  adopt  and  follow  the  very  words  of 
the  law  ;^  as  the  court  takes  judicial  notice  of  the  law,  though  the 
statute  may  be  referred  to  in  some  cases  to  avoid  ambiguity 
and  create  a  certainty  as  to  the  relief  demanded,  as  where  the 
plaintiff  has  his  election  to  sue  for  a  penalty  given  by  a  statute, 
or  to  bring  his  action  simply  for  the  debt.^ 

With  reference  to  acts  regulated  by  the  provisions  of  a  stat- 
ute, as  of  the  statute  of  frauds,  it  is  sufBcient  to  use  such  cer- 
tainty of  alle^'atioa  as  was  sufficient  before  the  statute.  So,  on 
a  promise  to  answer  for  the  debt  or  default  of  another,  it  is  not 
necessary  in  the  corai)laint  to  aver  that  the  promise  was  in 
writing  ;3  or  in  an  action  on  a  contract  relating  to  real  estate.^"* 

If  a  statute  should  contain  excepUons  in  the  enacting  clause, 
the  plaintiff  must  clearly  show  that  the  defendant  is   not  within 

» Gould's  PI.  46,  note.  Pr.  8 ;  Brown  v.  Harmon,   21   Bnrb. 

«Cal.  Code  C.  P.,  8ec.  459;  N.  Y.  50S;  Urowne  v.    Stimp'«<>n,  2   Mass. 

Code,  sec.  5>!0;  Idaho,  sec.  61;    Ne-  444;    Soper  v.    HurvHrd   Coll'^s^e,    1 

vada,  sec.  fil ;  Arizomi,  sec.  61:  Ore-  Pick.    178;  Auslin  v.    Goodrich,  49 

pen,  sec.  87;  1  Van    Santv.  270;    6  N.  Y.  206. 

Band.  15.3.  ^  Ford  v.   Babcock.    2  Sandf.  528  f 

»  Wolfe  V.  Superv.  of  Richmond,  11  Thomas  v.    People.  19    Wend.    4«0; 

Abb.  Pr.  270.  C;)le    v.     .Jessup,  10  How.     Pr.  515; 

*  Eokert  v.  Head,  1  Mo.  593.  overruling  Fowler  v.  Hunt,  10  Johns. 

6  Id.  464. 

•Dyev.  Dve,  11  Gal.  168;  but  see  *  Citv   of  Utica  v.  Richardson,  6 

Gimmy  v.  Doane,  22  Id.  638,  where  Hill,  800. 

the  application  of  the  rule  laid  down  *  Wakefield  v.  Greenhood.  29  Oal. 

In  Dyev.  Dye  is  doubted.  In  Himmel-  697;  Stern  v.  Drinker,  2  E.  D.  Smith, 

manv.  Daiios,  35  Id.  448,  the  dislinc-  406;  Hilliard  v.  Austin,  17  Barb.  141; 

tion  is  drawn  between  pleading   the  Etliiisij  v.  Vanderlyn,  4  Johns.  237. 

performance  of  conditions  precedent  ^''  Livingston  v.  Smith.  14  How.  Pr. 

under  a  contract  and  conditions  pre-  492;  R^^ynolds  v.  Dunkirk  R.  R.  Co., 

scribed  by  a  statute,  holding  that  the  17    Barb.  617;  Champliu  v.   Parish, 

latter  must  be  alleged  Specially.     See  11  Paige,  408. 
also  Tertoro   v.  Wiswall,   16   How. 


§   330.  COMPLAINTS  IN  GENERAL.  175 

the  exception ;  *  unless  it  be  matter  of  defense,  in  which  case  the 
burden  of  proof  being  on  tlie  defendant  the  plaintiff  need  not 
allege  it  in  the  complaint,  as  the  plaintiff  need  not  allege  any- 
thing in  anticipation.^  Nii!n3rou3  violations  of  the  same  subdi- 
vision of  a  section  of  a  statute  may  be  alleged  in  one  count;' 
but  separate  counts  must  be  used  for  violations  of  separate 
subdivisions,^ 

In  penal  actions  foundei  on  statutes,  fact?  constituting  the 
offanse  must  be  set  out,  and  it  must  be  stated  as  a  substantive 
allegation  that  the  offense  was  committed  against  the  form 
of  the  statute. 5  As  a  genai-al  rule,  a  scienter  need  not  be 
averred.*  In  remedial  aytions  founded  on  statutes,  such  aver- 
ments must  be  made  as  are  necessary  to  bring  the  case  within  the 
statute,'''  as  remedies  in  derogation  of  the  common  law  must  be 
strictly  pursued. ^ 

§  330.  Foreign  Statut33,  how  Pleaded.  — Where  the 
plaintiff  relies  on  the  statute  laws  of  another  State,  he  must  aver 
those  laws  in  his  pleadings  in  the  same  mann.T  as  other  facts,' 
Tims,  to  plead  that  a  contract  is  void  by  foreign  usury  laws,  the 
laws  should  be  stated;  and  the  facts  which  render  the  contract 
void  according  to  them  should  be  alleged.^''  And  the  same  rule 
applies  to  municipal  laws  and  ordinances.^  To  show  due  dili- 
gence in  suing  on  a  foreign  debt,  the  laws  of  such  state  regu- 
lating the  contracts  mist  be  averred.^^  Pleading  foreign 
statutes  by  their  titles  an  i  dites,  or  statement  of  their  general 
provisions  and  requirements,  is  insufficient. ^^     But  in  the  courts 

»  1  T.  R.  144;  6  Id.  559;  1   East,  »  R^ed  v.  Northfleld,  13   Pick.   94; 

646;  2  Chit.  5i2;   Bonnett  v    H mi,  Worster  v.  CHnsil   Bi-id:,'e,  16  Id.  541; 

3John3.4:«;  Teel  v.  Fonda,  4  1 1.  801;  Read  v.  Chelm-iford,  Id.  128;  Mitchell 

Hart  V.  Cleis,   8   Id.   41;  rfhel.lon  v.  v.  Clapp,  12  Cush.  278. 

Clark,  1    Id.  518;  Burr  V.  Van    Bus-  *  Steel  v.  Steel,  1  Nev.  27. 

kirk,   3   Cow.  2(i3;  Foster  v.   H.i7vm,  »  Throop  v.  Hatch,  3  Abb.  Pr.  25; 

12  Barb.  517;  First  Biptist Church  v.  Piiinney  v.  Phiaiioy,  17  How  Pr.  197; 
UUea  «&  Schenectady  R.  R.  Co  ,  6  Id.  Thatcher  v.  Morris,  11  N.  Y.  487; 
813;  Williams  V.  Ins.  Co.  of  North  Monroe  v.  D  luujlass,  1  Seld.  447; 
America.  9  How.  Pr.  365.  Hutchison  v.  Patrick,  3  Mo.  65 ;  Ruse 

s  Canfield  V.  Tobias,  21  Cal.  349;  v.  Mutual   Benefit  Ins.   Co.,  23  N.  Y. 

Rad<-liffe  V.  Rowley,  2  Barb.  Ch.  28.  516:    Bean  v.    Bri-gs,    4   L.wa,   464; 

8  Longworlhy   ▼.   Knapp,  4   Abb.  Walker  v.  Maxwt-lf,  1  Mass.  104;  and 

Pr.   115;    People    v.    McFadden.   13  see  Andrews  v.  Herriott,  4  Cow.  610, 

Wend.  896;  G-affney  v.  Colvill,  6  Hill,  note. 

667.  ^^  Curtis  v.  Marten,  11   Paisre,  15. 

*  See  cases  cited  in  last  note.  ^^  Harker  v.    Mavor  of   N.  Y.,   17 

6  Levy  v.  Gowdey,   2  Allen,  321;  Wend.  199;  People  v.  Mayor  of  N.  Y., 

Peabody  v.  Havt,  10  Mass.  3^5;  Nich-  7  How.  Pr.  81. 

ols  V.  Squire.  5  Pick.  168;  HM-keli  v.  12  Mendenhall  v.  Gatelv,18Ind.  149. 

Moodv.  9  Id.  162;  Reed  v.  Northfleld,  "Throop  v.  Hitch,  8  \^)b  Pr.  23  y 

13  Id.' 99.  Phinney  V.   Phiniiev,   }7    How.    Pr. 
«  Bavard  v.  Smith,  17  Wend.  88;  197;  Carey  v.  Cincinnati  etc,    R.   R. 

Qaffney  v,  Colvill,  6  Hill,  667.  Co.,  5  Clarke  (Iowa),  357. 


176  PLEADINGS  OF  PLAINTIFF.  §  331. 

of  the  United  States,  no  averment  need  be  made  in  pleading,  in 
respect  to  the  laws  of  the  several  states,  which  would  not  be 
necessary  within  the  respective  states.^ 

§  331.  Statutes  of  Limitations,  how  Pleaded. — Facts 
tailing  the  case  out  of  the  statute  of  limitations  must  be  spe- 
cially set  out  in  the  complaint.^  A  failure  to  plead  it  is  a  waiver 
of  the  same.3  For  if  it  appear  on  the  face  of  the  complaint  that 
the  claim  is  barred,  and  no  facts  are  alleged  taking  the  demand 
from  the  operation  of  the  statute,  the  complaint  is  defective,  and 
demurrer  lies.'*  So,  if  fraud  be  alleged  as  committed  more  than 
three  years  before  the  commencement  of  the  action,  that  period 
being  the  limitation  prescribed  by  our  statute,  the  plaintiff  must 
allege  discovery  at  a  period  bringing  him  within  the  exception. 
It  is  not,  however,  in  general,  necessary  for  plaintiff  to  allege 
in  his  complaint  any  facts  or  circumstances  to  avoid  or  antici- 
pate the  defense  of  the  statute  of  limitations,  unless  the  cause 
of  action  appear,  upon  the  face  of  the  complaint,  to  be  barred. 
Waere  triple  damages  are  given  by  a  statute,  it  must  be  ex- 
pressly inserted  in  the  complaint,  which  must  either  recite  the 
statute  or  conclude  to  the  damage  of  the  plaintiff  against  the 
form  of  the  statute ;  as  in  actions  for  waste.*  Where  there  are 
separate  statutes,  giving  a  different  measure  of  damages  for  the 
same  wrongs,  it  has  been  held  that  the  plaintiff  must  elect  upon 
which  he  will  rely.^ 

§  332.  Third  Subdivision— Damand  for  Relief— The 
third  subdivision  of  section  426  of  the  California  code  of  civil 
procedure  prescribes  that  the  complaint  shall  contain  a  demand 
for  the  relief  which  the  plaintiff  claims.  This  is  the  most  im- 
portant subdivision  of  the  section,  as  the  relief  granted  to  the 
plaintiff,  if  there  be  no  answer,  shall  not  exceed  that  demanded 
in  the  complaint.'  But  in  any  other  case  than  a  default  of  the 
defendant,  as  where  issue  is  joined,  the  court  may  grant  any  re- 

1  Pennington    v.  Gibson,  T6    How.  580;  N.  Y.  Code,  sec.  275;  and  codes 

TJ.  S.  65.  of  Nevada.  Idaho,  Arizona,  etc. ;  iiaun 

»  Wormouth  v.  Hatf^h,  33  Gal.  121.  v.  Reynolds,  11  Cal.  19;  Gatre  v.  Kog- 

'  People  V.  Broadway  Wharf  Co.,  er?,  20  Id.  91;  Lattimer  v.  R\aii,  Id. 

81  Cal.  33.  628;  Lamping  v.  Hyatt,  27   Id.  102; 

*  Smith  V.  Richmond,  19  Cal.  476;  Gautier  v.  English,  29  Id.  165;  Par- 
Chabotv.  Tucker,  a9  Id.  434.  rott  v.  Den,  34  Id.  81;  ISimonson  v. 

«  Chipman   v.  Emeric,  5  Cal,  239;  Blake,  12  Abb.  Pr.  331;  20  How.   Pr. 

Bee  also  R^es  v.  Emerick,  6  Serg.  &  484;  Walton  v.  Walton,  32  B^rb.  203; 

R.   288;    Newcomb    v.  Butterfield,  S  Bond  v.  Pacheco,  30  Cal.  631,  where 

Johns.  342;  Livingston  v.  Plainer,  1  it  is  held  that  a  judgment  rendered 

Cow.  176;  Benton  v.  Dale,  Id.  160.  for  a  sum  greater  than  that  demanded 

'  Sipporly  v.  Troy  and  Boston  R.  in  the  prayer  is  not  void,  but  errone- 

R.  Co.,  9  How.  Pr.  83.  ous.     See  also  Andrews  v.  Muuilaws, 

*  Califoruitt  Code  Civil  Proc^  sec.  8  Hun,  65. 


§  S32.  COMPLAINTS  IN  GENERAL.  177 

lief  consistent  with  the  case  made  by  the  complaint  and  em- 
braced within  the  issue  ;^  so  that  where  there  is  an  answer  to 
the  co;nplaint,  the  prayer  for  relief  becomes  immaterial.*  So 
held  in  mandamus  and  quo  icarranto.^ 

The  t'leory  of  the  code  seems  to  require  the  plaintiff  spe- 
cifically to  demand  the  relief  to  which  he  supposes  himself 
entitled.'*  But  where  a  party  asks  for  a  specific  relief,  or  for 
such  otiieror  further  order  as  may  be  just,  the  court  may  afford 
any  relief  compatible  with  the  facts  of  the  case  presented.* 
And  if  specific  relief  can  not  be  granted,  such  relief  as  the  case 
anthorizes  mny  be  had  under  the  prayer  for  general  relief.' 
Thus,  under  the  general  prayer,  the  court  may  allow  a  deed  to 
be  reformed  by  inserting  in  it  a  power  of  revocation.'  It  is, 
however,  improper  to  include  counsel  fees  and  amount  paid  for 
taxes  in  the  judgment,  if  not  asked  for  in  the  prayer  for  relief. ^ 
To  entitle  plaintiff  to  relief  in  equity,  it  must  be  shown  that  he 
is  without  remedy  at  law.^ 

The  prayer  of  a  complaint  may  seek  both  legal  and  equitable 
relief  where  the  matter  arises  out  of  the  same  transaction.^* 
But  they  must  be  separately  stated  in  the  complaint.^  And  the 
grounds  of  equitable  interposition  should  be  stated  subse- 
quently to  and  distinct  from  those  upon  which  the  judgment  at 
law  is  Bought.^2  Thus  a  prayer  for  an  injunction  is  proi)er  in  an 
action  of  trespass.  ^^     Or  where  suit  is  brought  to  test  the  prior- 

*  California  Code  Civil  Proc,  sec.  see  Dykers  v.  Townsend,  24  N.  T. 
580;  S:iviiig3  and    Loan    Society    v.     62. 

Thompson,  32  Cal.  347.  "•  Grafton  v.  Remsen,  16  How.  Pr.  82. 

*  riej  cas'es  last  oited;  Marqnat  v.  *  Janson  v.  Smith,  Cnl.  Sup.  Ct., 
Marquat,  2  Kern.  336.  Jan.  L\  18')  i,  not  reported. 

8  People  V.   Board  of  Supervisors,  *  Lupton   v.   Lupton,    3  Cal.   120; 

27  Cal.  655.  Parker  v.  Woolen  Co.,  2  Blaik.  U.  S. 

♦  L'Amoreaux  V  Atlantic  Mut.  Ins.  515.  What  av.^rmenls  on  the  fHce  of 
Co.,  3  Durtr,  6S();  Mills  v.  Ttmrsbv,  a  bill  in  equity  entitle  plaintiflF  to 
2  Abb.  Pr.  4.32.  Tiie  eflFect  of  the  relief,  see  Gnffi'ng  v.  Gibb,  2  Black 
prnyer  of  ih^  complaint  is  discussed  U.  S.  519. 

and' qualifie  I   in    Savings    and   Loan  •"  Gatos  v.  Kieff,  7  Cil.  125;^  Marius 

Society  v.  Thompson,  32   Cal.   3t7;  V.  Bicknell,  10    Id.    224;   Weaver  v. 

Conger  V.  Giitner,  34  LI.  77;  Lane  v.  Con^cer,    Id.  237;  Rollins  v..    Forbes, 

GliickHUtf.28Id.2-!0;CassHciav.  Phoe-  Id.  300;  Hill  v.  Tavlor,  22^  Id.   191; 

iiix  Ins.   Co.,  28  Id.  628;  MiComb  v.  Eastmin  v.  Turman",  24  Id.  3&2;  Gray 

Reed,    Id.  289;    N.  C.   &  S.   C,  Co.  v.   Dougherty,  25  Id.     266;  More   v. 

V.  Kidd,   37  Id.  301;  Van    Dyke  v.  Missini,  32 'id.   595,  596;;   Palen  ▼. 

Jackson,  1    K  D.  Smith,  419;  .Jones  Bu>hnell.  46  Barb.  24. 

V.  Butler,  30  Barb    611;  20  How.  Pr.  ^l  Gates  v.  Kietf,  7  Cal.  12i;  Getty 

189;  Emery  v.  Pease,    20  N.   Y.  62;  v.  Hudson  River  R.   [i.  Co.,  6    How. 

Marquat  V.  Marquat,  12  Id.  336;  re-  Pr.  269;  New  York  L-e  Co.  v.  N.  W, 

versing  S.  C.  7  How.Pr.  417.  Ins.  Co.,  23  N.  Y.  357;  21    How.  Pr. 

6  People  V.  Turner,  1  Cal.  152,  296;   Lamport  v    Abbott,  12  Id.  340. 

•  Id  ;  Truebodv,  v.  Jacobson,  2  Id.  "  Natonia  Water  and  Mining  Co.  V. 
2^9:    Rollins  v.  Forbes,   10  Id.  299;  Clarkin,  14  Cal.  544. 

H.m-.«on  V.  Decker,  29  How.  Pr.  385;        "  Gates  v.  Kieff^  7  Gal.  125. 
KsTEB,  Vol.  I—  13 


178  PLEADINGS  OF  PLAINTIFF.  §  332. 

ity  of  the  appropriation  of  water. ^  Or  on  foreclosure  of  a 
mortgage  to  restrain  waste  during  the  period  of  redemption.* 
But  a  prayer  can  not  include  a  demand  for  two  kinds  of  rel  ef 
inconsistent  with  each  other,  as  for  redelivery  of  and  damages 
tfor  the  detention  and  conversion  of  personal  property. ^  Or  for 
•general  relief  and  for  judgment  in  a  specified  sum  for  a  money 
demand  on  a  contract.*  But  such  prayer  will  not  be  struck  out. ^ 
And  the  court  will  not  resort  to  rules  of  construction  to  de- 
termine the  species  of  relief  demanded.^  But,  although  the 
prayer  be  inartificially  framed,  the  court  will  grant  relief.'' 
Under  the  liberal  rules  of  our  code  the  complaint  must  be 
taken  as  a  whole,  and  mere  failure  to  make  the  prayer  conform 
to  the  causes  of  action  set  forth  in  the  complaint,  will  not  pre- 
clude the  plaintiff  from  obtaining  the  relief  which  the  com- 
plaint peeks,  but  which  the  prayer  omits.  A  party  can  not 
«tate  one  set  of  facts  in  his  complaint,  pray  for  the  relief  which 
those  facts  would  authorize,  and  get  judgment  upon  another 
Bet  of  facts. 

In  general,  a  demand  for  judgment  in  the  alternative  is  im- 
proper.8  But  in  actions  for  equitable  relief,  the  complaint 
may  be  framed  with  a  double  aspect  where  there  is  doubt  as  to 
the  particular  relief  to  which  the  plaintiff  is  entitled.^ 

There  is  no  rule  of  pleading  which  requires  a  party  to  aver 
the  precise  amount  he  claims;  but  he  may  recover  a  less  amount 
than  that  which  is  stated  in  the  complaint.^*  And  where  there 
are  two  independent  counts  in  the  complaint,  each  complete 
within  itself,  and  concluding  with  a  prayer  for  relief,  and  a 
verdict  for  the  plaintiff  on  one  count  only,  the  relief  will  fol- 
low the  prayer  of  that  count.  ^ 

*  Mnrius  v.  Bicknell,  10  Cal.  217.  •  Maxwell  v.  Fflmam,  7  How.  Pr. 
«  Hill  V.  THj'lor.  22  Cal.  191.  236;  Durant  v.  GMrdiier,  10  Abb.  Pr. 
»  Maxwell  v.  Fariiam,   7  How.  Pr.    445 :  19  How.  Pr.  94. 

236.  "Young  v.   Edwi.rds.  11   How.  Pp. 

*  Diirantv. Gardner,  10  Abb.Pr.  445.  201 ;  Warwick  v.  Iilavor  of  N.  Y.,  28 
6  Herason  v.  Decker,   29  How.  Pr.     Barb.  210 ;  7  Abb.  Prl  265 ;  People  v. 

fi85.  Mayor  of  N.  Y.,  28  Barb.  240 ;  8  Abb. 

«  Gates  v.  Kieff,  7  Cal.  125.  Pr.  7 ;  Wood  v.  Seely,  32  N.  Y.  105. 

*  People  V,  Turner,  1  Cal.  152 ;  True-  "  Meek  v.  McCluie,  49  Cal.  627. 
body  V.  .lacobson,  2  Id.  269 ;  Stewart  "  N.  C.  &  S.  C.  Co.  v.  Kidd,  87  CaL 
V.  Uutchiuson,  29  How.  Pr.  181.  283. 


FORMS  OF  COMPLAINTS. 


STJBDIYISIOJS'  FIRST. 

BY  AND  AGAINST  PARTICULAR  PERSONS,   INDIVIDUALLY,  AND 
IN  REPRESENTATIVE  CHARACTER  AND   OFFICIAL  CAPACITY. 


CHAPTER  I. 

ASSIGNEES  AND  DEVISEES. 

§  833.    By  the  Assignee  of  a  Claim. 

F9rm  No.  70. 
[Title.] 
The  plaintiff  complains,  and  alleges : 

I.  [State  cause  of  action  accruing  to  the  plaintiff  *s  assignor.] 

II.  That  on     the day    of ,  18..,  at ,  the 

said assigned  the  said  claim  to  plaintiff. 

[Demand  oi-  Judgment. 
§  334.  What  Choses  in  Action  are  Assignable. — ^The 

provisions  of  the  codes  of  the  various  states  requiring  that 
*'  every  action  must  be  prosecuted  in  the  name  of  the  real  party 
in  interest,"  ^  except  as  otherwise  provided,  the  immediate  effect 
of  which  is  to  permit  the  assignee  of  a  thing  in  action  to  sue  in 
his  own  name,  raises  the  important  question,  What  things  in 
action  are  assignable?  At  common  law,  with  the  exception  of 
actions  on  negotiable  paper,  the  rule  was  well  set  led  that  "in 
general,  the  action  upon  a  contract,  whether  express  or  implied, 
or  whether  by  parol  or  under  seal,  or  of  record,  must  be  brought 
in  the  name  of  the  party  in  whom    the  legal  interest  in  such 

>C»lifornia,  sec.  867;  N.  Y.,  sec.  sec.  62;  Nev.,  sec.  4;  Ky.,  sec.  80; 
— :  S.  C,  sec.  134;  N.  C,  sec.  55;  Ohio,  »ec.  25;  Iowa,  seo.  ^648;  Neb., 
IndiaoH,  spc  3 ;  Ennsas,  sec.  26 ;  Minn.,  s«'C.  28 ;  Col.,  sec  — ;  Wyoming,  sea 
sec.  26;  Mo,,  art  1,  sec.  2;  Wis,  c  81;  Idaho,  sec  4;  Ariz.,  sec.  — | 
122,  sec.  12;  Or.,  sec*.  27,  379;  Fla..      Mon.,  sec  4. 

179 


180  FOKMS  OP  COMPLAINTS.  §  337. 

contract  was  vested."  ^  In  equity  a  different  rule  prevailed, 
which  permitted  the  assignee  to  sue  in  his  own  name.  The 
effect  of  the  provisions  of  the  code  cited  above  is  to  extend  this 
equity  doctrine  to  all  cases  of  assi-inment,  hut  not  to  render 
assignable  any  claims  or  demands  which  before  its  enactment 
were  unassignable.^  In  the  d(.'tertnin;ition  of  this  question, 
therefore  recourse  must  be  had  to  the  settled  doctrines  of  the 
law  as  they  existed,  independent  of  any  changes  of  procedure 
made  by  the  code.  As  a  general  proposition,  all  choses  in  ac- 
tion which  survive  and  pass  to  the  personal  representatives  of 
a  decedent  are  assignable,  aud  this  includes  not  only  causes  of 
action  which  arise  from  contract,  but  in  many  cases  those  which 
have  their  origin  in  torts  done  to  personal  or  real  property.  In 
general  all  causes  of  action  arising  from  the  breach  of  con- 
tract survive,  and  are  consequently  assignable,  except  those 
which  are  purely  personal  in  their  nature,  and  the  fulfillment 
of  which  requires  the  continuance  of  the  relation  between  the 
original  contracting  parties.  As  illustrations  of  such  personal 
contracts  which  are  not  subject  to  assignment,  are  contracts 
providing  for  apprenticeship, ^  contracts  for  marriage,*  and  con- 
tracts stipulating  for  the  performance  of  services  by  an  attorney 
or  medical  practitioner. ^    On  the  contrary  the  following  causes 

*  1  Ch.  PI.  2.  «rence  to  which  the  administrator  or 
'  HoHgrnnn  v.  Western   R.   Co.,   7    executor  represents  the  person  of  the 

How.  Pr.  492,  in  which  the  court  said:  deceased,  and  is  in  law  his  assignee. 
"The  only  change  made  by  the  code  But  as  to  this  class  of  rights  of  action 
is  to  transfer  with  the  beneficial  in-  late  cases  have  somewhat  qualified 
terest  the  right  of  action  also  in  those  the  rule,  and  it  is  now  well  settled 
cases  where  before  the  court  would  that  an  executor  or  administrator 
recognize  and  protect  the  rights  of  can  not  maintain  an  action  upon  an 
the  assignee.  No  new  right  of  action  express  or  implied  promise  to  the  de- 
is  created ;  no  authority  is  given  to  ceased,  where  the  ditmages  consist 
assign  a  right  of  action  not  before  as-  entirely  of  the  personul  suff"eritig8  of 
gigiiable."  the  deceased,  whether  m<'ntal  or  cor- 
'  Hall  v.  Gardner,  1  Mass.  172;  poreal.  Actions  for  the  brench  of  a 
Davis  V.  Coburn,  8  Id,  299;  Cochran's  promise  of  marriage,  for  unskillful- 
E?:'rv.  Davis,  5Litt.  118.  ness  of  medical  practitionerscon'iary 

*  Stebbins  v.  Palmer,  1  Pick.  71 ;  to  their  implied  unUr  akiiig,  ih  ■  im- 
Smith  V.  Sherman,  4  Cush.  408;  Lat-  prisonment  of  a  party  on  account  of 
timore  v.  Simmons,  13  Serg.  &  R.  183 ;  the  neglect  of  h  8  attorney  to  perform 
Chamberlain  v.  Williamson,  2  Mau.  his  professional  engagements,  fall  un- 
&  Sel.  408;  1  Ch.  PI.  51;  Meech  v.  der  this  head,  being  considered  as 
Stoner,  19  N.  Y.  29;  Wade  v.  Kalb-  virtually  actions  for  injuries  to  the 
fleisch,  58  Id.  282.  person.     ♦    *    *    If  it   be  true  that 

*  Zabriskie  v.  Smith,  13  N.  Y.  8^3.  the  executors  and  administrators  are 
In  this  case  Denio,  J.,  said:  "The  the  testator's  assignees,  it  is  fair  to 
maxim  of  the  common  law  is.  Actio  assume  that  they  take  whatever  of  a 
personalis  moriturcum  persona.  This  personal  nature  the  deceased  had 
principle  was  not  originally  applied  which  was  capable  of  assignment;  and 
to  causes  of  action  growing  out  of  the  thus  the  power  to  assign  and  to  trans- 
breach  of  a  contract.  They  were  mit  to  the  personal  representatives  are 
parcel  of  the  personal  estate,  in  ref-  convertible  proposilioos.  *  *  *  Any 


§  335.  ASSIGNEES  AND  DEVISEES.  181 

of  action  have  been  held  assignable,  although  upon  a  casual 
examination  they  might  appear  to  fall  within  the  class  of  per- 
sonal contracts  which  are  not  subject  to  transfer.  Thus  a  con- 
tract of  guaranty ;  *  the  right  of  a  borrower  to  recover  back  the 
excessive  interest  upon  an  usurious  loan ;  ^  a  contract  for  the 
hiring  of  the  services  of  state  prison  convicts ;  ^  a  contract  with 
the  authorities  of  a  city  corporation  for  cleaning  the  streets 
during  a  certain  time  and  at  a  stipu'ated  price;  *  right  of  an 
officer  to  his  fees,^  and  the  right  of  a  widow  to  her  dower  before 
admeasurement,  may  all  be  assigned.® 

§  335.  Assignment  of  Claims  Arising  from  Torts. — In 
determining  what  causes  of  action  arising  from  torts  are  assign- 
able, the  same  criterion  has  been  adopted  as  in  the  case  of  con- 
tracts. If  the  claim  is  one  which  would  survive  to  the  personal 
representative  of  tlie  decedent,  it  is  assignable,  otherwise  n  it. 
As  a  general  rule  causes  of  action  arising  from  torts  were  not 
assignable  at  common  law;  and  the  same  rule  prevailed  in 
equity  as  to  merely  personal  injuries,  such  as  libel,  slander,  and 
the  like,  where  the  effect  of  the  injury  did  not  tend  to  diminish 
the  value  of  the  estate.  Such  personal  injuries  died  with  the 
person,  and  were  incapable  of  assignment.'  Statutes  have  been 
passed  in  most  of  the  states  which  increase  the  number  of  causes 
of  action  which  survive,  so  as  to  include  all  injuries  to  property 
by  which  its  value  has  been  diminished. ^  As  illustrations  of 
such  causes  of  action  which  survive,  and  are  consequently  as- 
signable, may  be  mentioned  claims  arising  from  the  negligent 
use  of  real  or  personal  property.*     Or  for  the  conversion  of  the 

interpst  to  wTiich  the  personal  rf>pre-  'People  v,  Tiojfa,    19  Wend.  78} 

seniitlves   of   a    decadent  would  not  ComPtjys  v.  Vane,  1  Pet.  209. 

fiuc' ei'tl  is  not  the  subject  of  assign-  *  Hoyt  v.  Thompson,  6  N.  Y.  320} 

met\\  infer  vivos."  Hai.rht  v.  Hnvt,  19    Id.  4H4;  Bvxbie 

1  Sinuli  V.  Sloan,  1  Bopw.  352.  v.   Wood,  24  Id.    607;    McMaho'n    v. 

«  VVheelock  V.  Lee,  64  N.  \.  242.  Allen,  35  1.1.  403;  Graves  v.  Spiers,  58 

«  H..riier  V.  Wood,  23  N.  Y.  SIO.  B  .rb.  340 :  Butler  v.  N.  Y.  &  E.  li.  R., 

*  Devlin  V.  Mriyor,  63  N.  Y.  a  In  22  Id.  110;  Weire  v.  Dnvenport,  11 
discus-inj;  the  right  of  a  contractor  I  >wa,  49;  Tvson  v.  McGuineas,  25 
to  a-8i<»M,  Allen,  J.,  said:  "If  the  Wis.  656;  Smith  y.  Harris,  43  Mo. 
iervioe  to   be   rendered   is  not  neces-  5lJ2. 

sarily  personal,  and  such  a*  can  only,  •  Fried  V.  N.    Y.   Cent   R.    R,  26 

and  with  due  regard  to  the  intere-ts  How.  Pr.  2*^5;  Waldron  v.  Willard,  17 

of  the  parlies  and  the   riirhts  of  the  N.  Y.  46i;  Merrill  v.  Grinnell,  80   Id* 

adverse   party,    be    rendered    by  the  f>94;    Merrick    v.  BrHinanl,  88    Barb. 

OritjiiiHl  oontnictor,  and  the  latter  has  574;  Stanton  v.  Leland,  4E.  D.  Smith, 

fiot  (ii^qualifled  himaell  from  perform-  88;  Fulton  Fire  Ins.  Co.  v.  Baldwin, 

ance."  the  contract  is  assitjnable.  37  N.     Y.    648;   Diiiinny   v.  Fav,  88 

>  Pi.ttt  V.  Stout.  14   Abb.    Pr.  178;  Barh.  18;  Ayrault  v.  Pacific  Bafik,  8 

Birkbeck  v.  S  -.ffMrd,  Id.  285.  liobu  3a7. 

•  a.rong  V.  Clem,  12  liid.  37. 


182  POEMS  OP  COMPLAINTS.  §  336. 

latter.^  Or  injuries  to  the  same.^  Or  for  fraudulently  inducing 
one  to  enter  into  the  marriage  relation.'  Or  for  fraud  or  de- 
ceit in  contracts  relating  to  the  sale  of  real  or  personal  prop- 
erty *  On  the  contrary,  causes  of  action  which  relate  purely  to 
the  person,  and  are  founded  on  injuries  done  to  the  body  or 
character,  do  not  survive,  and,  as  a  consequence,  are  not  as- 
signable. As  illustrations  of  this  class  are  claims  for  malicious 
prosecution. 5  Or  for  injuries  to  the  person,  caused  by  the  neg- 
lect of  a  common  carrier.^  Or  for  a  vendor's  lien  for  the  purcliase 
price  of  land  sold.'  Nor  will  a  verdict  rendered  in  such  an 
action  change  the  nature  of  the  demand  so  as  to  render  it  as- 
signable, although  after  judgnent  the  same  may  be  assigned  as 
a  contract  of  record.^  If,  however,  after  judgment  has  been 
entered  upon  the  verdict,  and  a  motion  for  a  new  trial  has  been 
made,  the  party  in  the  mean  time  die,  judgment  will  be  entered 
nunc  pro  tunc  as  of  the  time  of  the  verdict,  so  as  to  prevent  the 
action  from  abating.^ 

§  336.  Assignments,  how  Made. — No  formality  in  the 
manner  of  assignment  is  necessary  to  invest  the  assignee  with 
the  right  to  bring  suit  in  his  own  name.  Any  act  amounting  to 
a  rightful  appropriation  of  a  debt,  or  whereby  one  person's  in- 
terest in  a  chose  in  action  passes  to  another,  constitutes  an 
assignment.^"  So,  where  an  order  is  given  for  a  valuable  con- 
sideration, and  for  the  whole  amount  of  a  demand  against  the 
drawee,  though  worthless  as  a  bill,  it  operates  as  an  assignment 
of  the  debt  or  fund  against  which  it  is  drawn."    And  an  order 

iLazflrd  v.  Wheeler,  22  Cal.  139;  «Hodgman  v.   Western   R.    R.,  7 

Tyson   v.  McGuineas,  25    Wis.   656;  How.  Pr.  492 ;  Purple  v.  H.  R.  li. K., 4 

Smith  A.  Kenneit,  18  Mo.  15^;  McKee  Duer,  74.     This  rule  has  been  changed 

V.  Judd,  12  N.  Y.  622;  Kiuhlmeyer  v.  in  several  of   the    states   by   special 

Kemsen,  88  Id.  20t>.  statutes,    which    give  a  rit^ht    of  ac- 

*  Rutherford    v.   Aiken,    8    N.    Y.  tioii  under  such  circumstances  to  the 

Sup.  Ct  HO;  More  V.  Ma^sini.  32  Cal.  personal    representatives    of  the  de- 

590;  UHight  v.   Green,   19    Id.   118;  ceased 

Weire  v.    Dav»»nport,   11    Iowa.  49;  '  Biura  v.    Qrisbv,    21    Cal.    172; 

McArthur  v  Green  Bav  etc.  Co.,  34  Lewis  v.  Covilland,  Id.  78;   Williams 

Wis.  1  19;  Butler  V.  N.  Y.  &  E.  R.  R.,  v.  Young,  Id.  227. 

22  Barb.  110.  «  Lawrence  v.  Martin,  22  Cal.  173; 

»  Hii,'gins  v.  Br^en,  9  Mo.  497.  Crouch   v.  Gridley,  6  Hill,  250;  In  re 

«H.ight  V.  Havt,    19   N.  Y.   4«4;  Charles,   14    East,   197;    Kellogg    v. 

Byxbie   v.    Wood.   24    N.    Y.    607;  SchuvW.  2  Denio,  73. 

Graves  v.  Spiiir,  58  B  irb.  849;  .fohns-  *  livghtmyre  v.  Durham,  12  Wend, 

ton  v.   BeiiiiHtt,  5  Abb.  Pr.  (N'.  S.)  24  >;  Tuner  v.  Booker,  2    Dana,  834; 

«81;  Woodburv  V,  Deloss,   65   Btrb.  Collins  v.  Prentice,    15    Conn.    423; 

501;  G-ocers'  Nat.   Bk.  v.  Clark.  48  Diul  v.  Holier,  6  Ohio  St.  228. 

Id.  26;  but  spft  contra,  Zibriskie  v.  *"  Wiggins  v.  McDonald,    18    Cal. 

Smith.  18  N.  Y.  822.  126. 

»N.K)t,aii  v.  Orton.   84  Wi».  259;  "  Wheatlev  v.  Strobe,  12  Cal.  92; 

Lawrence  v.  Martin.  22  Cal.  173.  Walker  v.  Mauro,  18  Mo.  664. 


§    337.  ASSIGNEES  AND  DEVISEES.  183 

drawn  by  a  creditor  on  his  debtor  for  a  portion  of  his  demand 
constitutes  an  assignment  of  the  debt  pro  tanto.^  In  Kentucky, 
however,  no  title  passes  by  a  partial  assignment.^  While  in 
Indiana  (the  code  of  which  state  requires  that  in  an  action  by 
an  assignee,  founded  on  a  non-negotiable  instrument,  the 
assignor  shall  be  joined),  the  assignee  of  part  of  a  judgment 
was  united  with  the  assignor  ;3  and  the  same  was  permitted  in 
the  case  of  the  assignee  of  one  of  two  payees  of  a  promissory 
note.^  Upon  the  same  principle,  the  assignment  by  a  creditor 
to  his  debtor  of  part  of  his  demand  constitutes  a  payment 
thereof />ro  tonio.*  So  also  the  indorsement  of  a  bill  of  lading, 
'prima  facie,  vests  the  property  in  the  go  )ds  in  the  indorsee.* 
An  instrument  in  writing,  whether  the  same  be  a  contract,  bond, 
or  judgment,  may  be  assigned  by  a  writing  on  a  separate  piece 
of  paper,  or  even  by  parol ;''  and  an  instrument  under  seal  may 
be  transferred  by  a  writing  not  sealed. ^  The  mere  signing  an 
assignment,  without  delivery,  is  sufficient  to  constiiule  the 
assignee  the  real  party  in  interest,  so  as  to  authorize  him  to  sue 
in  his  own  name.^  A  negotiable  promissory  note  or  bill  of  ex- 
change must  be  assigned  by  indorsement,  in  order  to  preserve 
its  negotiability ;  but  an  assignee  by  delivery  may  sue  thereon 
in  liis  own  name,  subject  to  all  the  equities  existing  in  favor  of 
the  drawer.^" 

§  337.  Assignments,  how  Alleged. — Where  the  plaintiff 
is  an  assignee,  the  complaint  must  allege  the  fact  of  the  assign- 
ment.^ Such  allegations  must  be  a  positive  averment  of  a  trans- 
fer, so  as  to  show  title  in  the  plaintiff. ^^  It  is  not  enough  merely 
to  allege  that  "  the  said  plaintiff  is  now  the   sole   owner  of  the 

iMi-Ewen  v.  John'on,  7   Cal  258;  son  v.  Camming',  28  Iowa,  341;  Will- 

Grai'i  V.  Aldiich,  3S  LI.  514.  iams  v.  Norton,  3  Kan.  205:  Carpenter 

»  Elleds^e  v.   Stratiijhn,  2  B,  Mon.  v.  Miles.  17  B.  Mon.  598;  C"iivngham 

82;  lUnk  of  Galliopolis  v.  Trimble,  v.  Smith,    16  Iowa,    471;    B  I'rthol  v. 

6  Id.  599.  Blakin,  31  Id.  4.52  ;    Mo..re  v.  Lowry, 

«  Tapping  v.  Diiffv,  47  Ind.  57.  25  Id.  386 ;  Green  v.  Marble,  37  Id.  9*5. 

«  Groves  v.  Ruby.  24  Ind.  418.  «  Moore  v.  Waddle,  34  G  il    145. 

»  McPike    v.     McPherson,  41  Mo.  »  Ritter  v.  Stevenson,  7  Cal.  888. 

521.  i»  Andrews  v.    MoDnniel,    68  N.  0. 

•  Linpker  v.  Aveshford,  1  Cal.  76;  883;   Maudeville  v.  Riddle.    1  Cranch, 

Harisv   De  Wolf".  4  Pet.147;  Bdder-  95;    White    v.     Brown,  14  H..w.  Pr. 

sto  I  V.  Mmro.  2  Crmch  C.  C.  628.  282;   Billings  v.  Jane,  11    Rub.  620: 

T  Hook-rv.  EigieBink,  .SON  Y.  83;  Gould  v.  Ellery.  39  Id.  168;   FHrring- 

Jones  V.  Witter.  13  Miss.  804;  Briggs  ton  v.  Park  Bank,  Id.  645;    Brown  v. 

V.  Dorr.  19  .Johns.  95;   Dunn  v.  Snell,  Richird-<on,  1  Bosw.  402 ;    Hou</htou 

15  Id.  481;   M-Glain  V.  Weilemever,  v.  D  >dg".  5  Id.  326 ;    Sexton  v.  Fleet, 

25  M  '.  8  U  ;  Thor  iton  v.  Crowther,  24  2  Hilt.  4^5. 

Id.  164;  Hancock  V    Ritchie,   11   Ind.  "  Prindle  v.    Caruthers.  15  N.  Y. 

48;  Andr-w-t  v    Vl-Diniel,  68  N.   C.  426;   White  v.  Brown.  14    How.  Pr. 

8-<5;   Wiite  V.   Pholps.   14  Minn.  27;  282;   Ad.ams  v.  Holley.  1  >  Id.  880. 

Weinwick  v.  Bender,  33  Mo.  80;  Pear-  ^*  Stoarna  v.  Martin,  4  Cal.  227. 


184  FORMS  OF  COMPLAINTS.  §  338. 

demand."  Such  an  allegation  is  not  an  averment  of  an  issuable 
|act,  but  of  a  mere  conclusion  of  law,  and  its  denial  would 
raise  no  issue. ^  An  allegation  that  A.  duly  assigned  and  trans- 
ferred all  his  interest  in  the  contract  to  the  plaintiff  B.,  and 
that  the  plaintiff  C.  became  interested  by  a  sale  and  assign- 
ment to  him  of  a  part  of  B.'s  interest,  has  been  held  sufficient.^ 
In  Indiana,  where  an  instrument  not  assignable  is  assigned  and 
sued  on  by  the  assignee,  if  the  assignor  is  made  a  party,  it  is 
immaterial  and  need  not  be  alleged  how  the  assignment  was 
made.  3 

§  338.  Averment  of  Consideration  for  Assignment. — 
A  promissory  note  imports  a  consideration,  and  none  need  be 
pleaded  in  an  action  by  an  assignee.*  Even  for  a  sealed  con- 
tract an  averment  of  assignment  imports  that  it  was  made  by  a 
sealed  instrument,  from  which  a  consideration  is  to  be  inferred, 
and  consequently  none  need  be  stated.*  Nor  can  the  defend- 
ant aver  or  prove  that  the  assignment  was  only  intended  as 
collateral  security  for  the  payment  of  a  debt,  if  the  assignment 
is  absolute  on  its  face.^  So,  in  Kentucky,  it  is  not  necessary  in 
a  suit  by  an  assignee  of  a  chose  in  action,  against  the  assignor, 
to  aver  a  valuable  consideration.  It  is  sufficient  to  set  out  the 
assignment."'' 

§  339.  Assignment  of  Accounts. — The  assignee  may  sue 
in  his  own  name  on  an  account  assigned  to  him.^  But  where 
there  is  no  final  settlement  of  partnership  accounts,  and  no  bal- 
ance struck,  and  no  express  promise  on  the  part  of  the  individual 
members  to  pay  their  ascertained  portions  of  this  amount,  no 
action  can  be  maintained  therefor  in  assumpsit,  nor  can  an 
individual  partner  assign  his  claim  against  the  partnership  so 
that  the  assignee  may  sue.^  The  assignee  of  an  account  and 
note  given  in  part  payment  of   it,  where  the  assignment  of  the 

1  Thomas  V.  Desmond,  12  How.  Pr.  *  Winters  v.   Kush.    34    Cal.    130; 

821;  Russell  v.    Clapp,   7  Barb.  482;  Martin  v.  Kanouse.  2    Abb.   Pr.  831; 

Bentley  v.   Jones,  4    How.    Pr.  202;  Horner  v.  Wood,  l6Birb  372. 

McMu'rray  V.  Gifford,  5  Id.  14;  Parker  *  Moore   v.   Waddle,   34   Cal.  145; 

V.  Totten.    10  Id.    233;    Poorman   v.  Fowler  v.  New  York  Iiidem.  Ins.  Oo., 

Mills,  35  Cal.  121,     In  Brown  v  Rich-  23   Barb.    143;  Clark  v.    Downinsj.  1 

ftrdson,  20  N.  Y.  472,  an  averment  in  E  D,  Smith,  406;  Burtnettv.  Gwyniie, 

an    action   on  a  non-neajotiable   note  2   Ab.    Pr.  79;  Vofj;el   v.   Bad'ock.  1 

that   the   same   was  duty  indorsed  to  Id.    17fi;    Martin   v.    KHnoii<p.  2    Id. 

plaintiff,    and    that  he  is  the    lawful  330;  Richardson   v.    Mead,  27    Barb. 

own>'r  and    holder  of  the  same,  was  178. 

held  sufficient  to    admit  evidence  of  *  Wetmore    v.  San    Francisco,     44 

the  assignment.  Cal.  291. 

a  Horner    v.  Wood,    15  Barb.  372;  Mlult  v.  Thompson,    1  DiivmI,  801. 

Fowler  V.  N.  Y.  Indem.  Ins.  Co.,  23  *  Carpenter  v.  .Johnson.  1   Nev.  331. 

Id.  151.  'Bullard  v.  Xinney,  10  Cal.  63. 

•  Buiitin  V.  Weddle,  20  Ind.  449. 


§  342.  ASSIGNEES  AND  DEVISEES.  185 

two  claims  was  contemporaneous,  may  sue  in  his  own  name.* 
An  assignment  of  an  account  by  indorsing  on  it  the  word 
"Assigned,"  is  sufficient,  and  it  may  be  amended  on  the  trial  by 
writing  above  it,  "  For  value  received,  I  hereby  assign  the  within 
account."  ^ 

§  340.  Assignment  of  Bonds,  Notes,  etc. — An  assignee 
of  bonds,  notes,  etc.,  may  maintain  an  action  thereon  in  his 
own  name.'  The  assignment  of  a  note  to  the  maker  is  a  pay- 
ment of  the  same.  And  the  same  is  true  of  a  joint  and  several 
note,  assigned  to  one  of  the  makers."*  Payment  by  the  maker 
of  a  non-negotiable  note  of  the  sum  due  upon  an  attachment 
against  the  payee,  without  notice  of  an  assignment,  will  bar  a 
suit  by  the  assignee.^  Although  a  bill  or  note  payable  to  order 
can  only  be  made  negotiable  by  an  indorsement  by  the  pnyee, 
still  a  transfer  by  delivery  is  sufficient  to  entitle  the  holder  to 
sue  thereon  in  his  own  name,  the  same  as  in  assignments  of 
other  choses  in  action.^ 

§  341.  Assignm3nt  by  a  Corporation. —  In  an  action 
brought  by  the  assignee  of  a  corporation,  it  is  not  essential  to 
particularly  state  the  fact  of  incorporation.  A  statement  of  the 
name  of  the  corporation,  and  of  the  making  of  the  agreement 
between  them,  and  of  what  the  corporation  did  in  fulfillment  of 
its  ag-eement,  is  sufficient.'^  And  the  complaint  need  not  aver 
that  the  directors  were  authorized  to  make  it.^ 

§  342.  Assignment  of  Debts. — An  order  drawn  by  a  credi- 
tor on  [lis  debtor  is  prima  fane  evidence  of  an  assignment  of  the 
debt  pro  tayito,  and  the  assignee  may  recover  on  the  same.^  And 
drawees  with  notice  are  liable  to  payees  without  an  express 
promise  to  pay.  In  Maine,  an  assignment  of  a  debt  may  be 
made  by  parol,  or  may  be  inferred  from  the  acts  of  the  parties.^" 
And  in  New  Hampshire  also  claims  for  torts  as  well  as  for  prop- 
erty may  be  assigned  by  parol. ^  In  Missouri,  a  general  con- 
veyance of  all  "debts  that  maybe  due,"  without  a  schedule, 
passes  to  the  grantee  such  a  title  as  will  enable  him  to  recover 
from  a  subsequent  general  assignee.^ 

»  Armstrong  v.  Cushney,  43   Bt.rb.  5  Bnsw.  326 ;  Sexon   v.  FIppI,  2  Hilt. 

340.  485;  Gould  v.   Eil.-rv,  39   BmfI..  Itj3; 

*  Ryan  v.  Maddux,  6  Cal.  247.  Farrinj^ton  v.  Park  Bank.  Id.  H4'). 

•  Mmideville  v.   Riddle,  1   Cranch,  ^  Kennedy  v.  Cotton,  28  Barb.  59. 
290;  Cottle  v.  Cole,  20  Iowh,  481.  «  Npl.«on  v.  Eaton,  1«  Ab  •.  Pr.  118. 

♦  (iordon  v.  Wansey,  21  Cal.  77.  •  McEwen  v.  Johnson.  7  Cal.  258; 
»  VVeinwick  v.  liender,  33  Mo.  80.          "Wheatlev  v.  Strobe,  12  Id.  97;  Pope 

•  Brown    V.  Richardson,    20    N.   T.     V.  Huth,'l4  Id.  408. 

472;  S.  C.    1    Bosw.  402;  Billings   v.  '<>  Garnsey  v.  Gardner.  49  Me.  167. 

Jane,  11   Barb.  620;  White  v.  Brown,  "  Jordan  v.  Gillen,  44  N.  H.  424. 

14  How.  Pr.  262 ;  Houghton  v.  Dodge,         "  Page  T.  Gardner,  20  Mo,  607. 


186  FORMS  OF  COMPLAINTS.  §   343. 

§  343.  Assignment  of  Goods  not  in  Possession. —  Where 
the  vendor  of  goods  is  not  at  the  time  of  sale  in  possession,  the 
transfer  is  an  assignment,  and  an  actual  and  continued  change 
of  possession  is  required  equally  as  in  cases  of  sale  by  one  in 
possession. 1  And  where  B.,  the  vendee,  assigned  to  C.  aeon- 
tract  for  the  delivery  of  goods  to  arrive,  and  C,  after  the 
arrival  of  the  goods,  tendered  payment  for  the  same,  it  was 
held  that  A.,  the  vendor,  was  not  entitled  to  notice  of  the 
assignment,  but  that  C.  might  enforce  the  contract  against 
him. 2 

§  344.  Assignment  of  Lease.  —  An  assignment  of  all  right, 
title,  and  interest  of  the  lessee  conveys  his  right  for  compensation 
for  new  erections  on  the  land  under  the  covenants. ^  A  lease, 
or  an  interest  therein,  or  a  right  of  entry  for  breach  of  one  of  its 
conditions,  may  be  assigned,  so  as  to  entitle  the  assignee  to  sue 
in  his  own  name.* 

§  315.  Assignment  of  Mortgages.  —  A  mortgage,  inde- 
pendent of  the  debt  it  is  intended  to  secure,  has  no  assignable 
quality.'  The  assignment  of  the  debt,  note,  or  bond  secured  by 
the  mortgage,  even  without  a  formal  transfer  of  the  security, 
carries  the  mortgage  with  it.^  In  California  it  has  been  held 
that  the  equitable  lien  which  a  vendor  of  real  estate  retains 
upon  the  property  for  the  unpaid  purchase  money  is  not  assign- 
able.'' But  a  claim  for  damages  for  trespass  on  land  is  assign- 
able, and  the  assignee  may  maintain  an  action  for  the  same  in  his 
own  narae.^ 

§  346.  Assignment  of  Insurance  Policy. —  An  assignment 
of  a  policy  of  insurance  on  a  stocI<  of  goods  attaches,  in  equity, 
as  a  lien  upon  the  amount  due  on  the  policy  to  the  extent  of  the 
debt  as  soon  as  the  loss  occurs.* 

§  347.  Assignments  of  Judgments.  —  A  cause  of  action 
which  does  not  survive  to  the  personal  representatives  is  not 
assignable.  But  if  suit  has  been  brought  on  such  a  cmse  of 
action,  and  judgment  recovered,  the  judgment  is  eonsi  leied  as 
a  contract,  and  is  capable  of  assignment,  even  after  the  death  of 
the  judgment  creditor.     A  verdict,  however,  on  such  a   cause 

»  Weil  V.  Paul.  22  Cal.  492.  Willis  v.  Fnrlev,  24  Cal.  490;  Hurt  v. 

»  Morgan  V.  Lowe,  5  Cal.  326.  Wilson,  38  Id.  2t)3. 
»  Hunt  V.  Danfonh,  2  Curt.  C,  Ct.  '  l{aum  v.  Gtisishy,   21    Ciil.    172; 

692.  Lewis  v.  CovillMiKJ,  Id.  17d;  V\  illiamg 

*  Averill  v.   Tavlor,  8   N.   Y.  44;  v.  Young.  Id.  227. 

Van  Keti8sel>ter  v.  Bull.  12  N.  Y.  100;  ^  More  v.  Miissini,  32  CmI.  500. 

Vail  Kensselner  v.  Hhvs,  Id.  68  •  Bibend  v.  L.  &  L.  F.  &    L.   Ins. 

'  Polhemus  v.  Tr.in.T,  SOChI.GRS.  Co.,  30  Cal.  78;  P..pe  v.  Hutii,  14  14 

•  Hutch  V.    While,    2   Gall.   162;  403;  Wbeailey  v.fcjirube,  12  Id.  92. 


§   349.  ASSIGNEES  AND  DEVISEES.  187 

of  action  does  not  have  the  same  effect.^  If  a  judgment  credi- 
tor assign  the  judgment,  and  the  judgment  debtor  without  no- 
tice of  the  assignment  afterwards  pays  the  same  voluntarily  to 
the  sheriff,  by  reason  of  service  of  garnishment  process  upon 
him,  the  assignee  may  still  enforce  the  judgment.^  In  a  suit  to 
enforce  a  judgment  lien  on  real  estate  brought  by  the  assignees 
of  the  judgment,  the  judgment  and  the  assignment  must  be  set 
forth.3 

§  348.  Assignmentof  Corporate  Stock, — An  assignment 
of  shares  of  stock  in  a  corporation  under  the  California  statute 
of  1853,  by  delivery  of  the  certificates,  without  transfer  on  the 
books  of  the  company,  is  invalid  against  subsequent  purchasers 
on  execution  against  the  assignor,  without  notice  of  the  assign- 
ment.^ 

§  349.  Effect  of  Assignment. — In  addition  to  the  provis- 
ions of  the  codes  which  require  every  action  to  be  prosecuted  in 
the  name  of  the  real  party  in  interest — the  effect  of  which,  as 
has  been  seen  above,  is  to  permit  the  assignee  to  bring  the  ac- 
tion in  his  ovn  name — there  is  another  very  important  section 
which  should  be  considered  in  this  connection.  The  codes, 
with  very  httle  difference  in  the  language,  provide  that  "  in  the 
case  of  an  assignment  of  a  thing  in  action,  the  acti  n  of  the  as- 
signee shall  be  without  prejudice  to  any  set-off  or  other  defense 
existing  at  the  time  of  or  before  notice  of  the  assignment ;  but 
this  section  shall  not  apply  to  negotiable  promissory  notes  and 
bills  of  exchange,  transferred  in  good  faith  and  upon  good  con- 
sideration, before  maturity."^  Tliis  statutory  provision  is  a 
substantial  embodiment  of  the  familiar  rule  which  existed  prior 
to  the  adoption  of  the  codes,  that  the  assignee  of  a  thing  in 
action,  not  negotiable,  takes  the  same  subject  to  all  the  defenses 
legal  or  equitable  existing  between  the  original  parties.^  Or,  as 
the  rule  is  stated  by  Johnson,  J.,  "In  the  case  of  the  assign- 
ment of  a  thing  in  action,  the  action  of  the  assignee  shall  be 

1  Lnvrrenoe  V.  M  irtin,  22   C«l.  173.  North  Carolina,   iiec.  55;    Nebraska, 

«   <r()wn  V.   Ayr-s,  88  Cal.  52).  spc.  2!);  Oregon,  sec*.  28,  382;  South 

»  Book<hire  V.  Loirmx,  20  Ind.  512.  C  irolina,  sec.   13o;    WH.<hiiiwt<'n,  sec. 

*  Wi>8ton  V,    BeHT   River  etc.  Co.,  6  3;  Wisconsin,  c.  122,  see.  18;  Wyom- 

Cal.  186;  Naglee  v.  Pa<ific  "Wharf  Co.,  ing,  sec.     — . 

20  Id    529;   People  v.  Elmore,  35  Id.  «  McCabe  v.    Grav,    20    Cnl.  509; 

663;  Parpott  v.  Byres  40  Id.  614.  Northam  v.  Gordon.  23  Id.2')o;  True- 

'  ATi70  a,    sec.   5;  California,   sec  bodyv  Jacob<on.  2  Id.    2ii'.t;  Olds  v. 

368;    Colorado,  sec. — :  Dakota,  sec.  Cummiiies.    31    III.   188;    Forti.-r  v. 

65;  Florida,   sec.    63;  Idaho,  see.    5;  Darst,   Id.   212;    Shaw    v.     ^^haw,    4 

Indiana,  SHO.  6;  Iowa,  sec.  2546;  Km-  Cranch  C    Ct.  715;  Shirras  v.   Cxig, 

sas.  sec  27;  Kentucky,  sec.  31  ;  Mon-  7  Crnnch.  34;  Kinsman   v.  P:«rkhur8t, 

tana,  sec.  6;   Mimegot*,  sec.  27;  Ne-  18  How.  28'J;  Timtus  V.  Shaaaon,  19 

vada,  sec.  5;    New  York,  sec. ;  Md.  296. 


188  FORMS  OP  COMPLAINTS,  §  349. 

without  prejudice  to  any  set-off  or  other  defense  existing  at  the 
time  of  or  before  notice  of  the  assignment,  which  would  have 
been  available  to  the  defendant  had  the  action  been  brought  in 
the  name  of  the  assignor.^  This  doctrine  has  been  applied  to 
assignmeits  of  bonds  under  the  statutes  of  Virginia  and  Indi- 
ana: 2  in  actions  by  the  assignees  of  mortgages;  ^  in  an  action  on 
a  nan-neg jtiable  warehouseman's  receipt;^  in  an  action  by  the 
assignee  of  jud^jments  and  decrees ;  '  in  actions  by  the  assignees 
for  the  benefit  of  creditors  ;  ^  in  actions  by  the  assignee  of  nego- 
tiable paper  after  it  has  lost  its  negotiable  character ;  '  in  ac- 
tions by  the  assignee  of  the  vendee,  to  compel  the  specific 
performance  of  a  contract  for  the  sale  of  lands ;  ^  and  in  actions 
by  the  assignee  of  a  partner.^ 

"When  the  assignee  of  a  thing  in  action,  which  is  subject  to 
equities  between  tlie  original  parties,  assigns  it  to  a  second  as- 
signee by  a  transfer  which  purports  to  convey  a  perfect  title,  for 
a  good  consideration,  and  without  any  notice  on  the  part  of  the 
second  assignee  of  any  defect  in  the  title,  the  question  has 
often  arisen,  whether  such  second  assignee  is  affected  by  the 
equities  which  existed  between  the  original  parties.  These 
equities  are  often  spoken  of  as  latent,  and  several  courts  have 
adopted  the  rule  that  such  latent  equities  can  not  prevail  against 
the  title   of  the  second  assignee. ^'^    The  effect  of  this  rule  is  to 

1  Beckwith  v.  Union  BanV.  9  N.  T.  '  Sflmpeyreao    v.    United  States,  7 

211 ;  Mild  see  to  the  same  effect.  My-  Pet.  222. 

ersv.  Davis,  22  N.  Y.  483;  Ingrabam  'Marine  Bank  v.  Jannoey,  1  Barb. 

V.  DisKornutrh,  47  1(1.421;  Andrews  486:  Maas  v.  Goodman,  2  Hilt.  27'). 

V.  Gillespie,  id.  487 ;  Busli  v.  Latlirop  '  Gwathney  v.  McLane.  3  M<Lean, 

22  Id.  .5S5 ;   Reeves  v.  Kimball,  40  LI.  371 ;  Koiin.savel  v.  Scholfield,  2  Cranch 

299;    Wood  v.   Ferry,   1  Barb.    114;  C.  Ct.  139. 

Ainslie  v.   Boynton.  '2  Id.  258;  Com-  »  Reeves  v.  Kimball.  40  N.  T.  299. 

mercial    Bank   v.    Colt,   15   Id.    50rt;  *  Nicoli  v.  Mumford,  4  .)<  bns.  Ch. 

Western  Btiik  v.  Sherwood,  29  Id.  388;  622;  Rodriguez  v.  Heticrnan,  5  Id.  417. 

Blydenburtjh  v.  Th;i\er,  3  Keyes,  293  ;  '"^  Livint^ston  v.  Dean,  2  Johns.  Ch. 

InCallanan  v.  Edwards,  32  N.  Y.  486,  479;  Murray  v.  Lylburn,   2   Id.   441; 

the  rule  is  til  us  stated:  "An  assififnee  Kodriguez  v.  Helfernan,  6    Id.    417; 

of  a  cli'ise  in   action  not  negotiable  Murray  v.  Bailou.  1  Id.  666;    Bebee 

takes    the   thing  as^^igned,  suiyect  tc  v.    Bank    of  N.    Y.,  1    Johns.    629; 

all  the  riKhls  which  the  debtor  had  James  v.  Morey,  2  Cow.  246;  Losey 

acquired  in   respect    th>'reto  prior  to  v.     Simp.son,    3     Stockf.      Ch.    246; 

the  as-ignment.  or  to  the  time  notice  Bloomer  v.  Hendirs.  n.  8  Mich.  395; 

was  given  of  it,  when   there  is  an  in-  Croft  v.  Bunster,  9  Wis.   50.3*   Mott 

terval  between  the  execution  of   the  v.   Clark,    9  Pa.  St.  399;    Tavlor    v. 

transfer  and  the  notice."  Gitt.  lOId.  428;  Metzgar  v.  Metzgar, 

*  Scott  V.  Shreve.  12  "Wheat.  605;  1  Rawle,  227;  MeConnell  v.  Wen- 
Bell  v.  Ninimo.  5 McLean,  110.  rich.  16  Pa.   St.   365;   Moore  v.  Hol- 

»  Hubbard  V.   Turner,    2    McLean,  combe.  3  Leigh,  648;  Ohio  L.  Ins.'Co. 

519;  Western  Bank  v.  Sherwood,   29  v.    Knss,    2    Md.   Ch    25;  Sleeper  v. 

Barb.  F183.  Chapman.   121    Mass    404  ;  Sumner  v. 

♦Commercial  Bank  v» Colt,  15 Barb.  Waugh.  56  111.  631;  "Winter  v.   Bel- 

£0«»  mout   M.  Co.,  53  Cal.  428.    In  this 


§  349.  ASSIGNEES  AND  DEVISEES.  189 

cxten  1  to  th3  assiQ;nra'^nl  of  ordinary  choses  in  action  the  well- 
settled  docjt.in^s  which  apply  to  the  assignment  of  negotiable 
instrurne  ts.  The  better  doctrine,  however,  is,  and  the  one 
wh'cli  is  se  tied  by  the  weight  of  authority,  that  the  right  of 
the  second  assignee  under  such  circumstances,  is  subject  to  all 
the  equities  existing  in  favor  of  the  original  parties.  The  orig- 
inal assignee  can  not  convey  a  greater  title  or  interest  in  the 
subject  of  assignment  than  he  hi  nself  has.^  Where,  however, 
the  owner  by  his  own  affi;mative  act  has  conferred  the  apparent 
title  and  absolute  ownership  upon  an  assignee,  upon  the  faith 
of  w  lioh  th3  cliose  in  action  has  b3en  purchased  for  value  by  a 
second  assignee,  tlie  owner  is  precluded  from  asserting  his  real 
title,  as  ajjainst  such  subsequent  purchaser,  by  the  application 
of  t'n  doctrine  of  estoppel.  This  rule,  although  it  has  gen- 
erally b3en  aoplied  to  transfers  of  stock  certificates  has  been  ex- 
tended by  some  courts  to  assignments  of  various  other  kinds 
of  ehos  'S  in  action. ^ 

In  order  to  give  a  debtor,  when  sued  by  the  assignee,  the 
riglit  t:)  set  off  a  djmvnd  against  the  assignor,  it  is  necessary 
that  such  demand  should  have  been  due  and  payable  at  the  time 
of  the  assignment,  and  not  have  matured  afterwards. ^  In  Cal- 
ifornia, h  )  vever,  a  demand  which  has  accrued  prior  to  notice  of 
the  assignment  is  allowed  to  be  set  off.'*  Negotiable'  paper,  as- 
signed after  maturity  is  subject  to  the  same  rules  in  regard  to 

latter  case  the  pin intiff,  the  owner  of  421;  Lf^dwich  v.  McKim,  53  Id.  307; 

cartaia   stiivres   ot"    stock,    transferred  Ciitts  v.  Guild.  57   Id.  229;   Bnrry  v. 

them  on  the  books  of  the  company  in  Eq.  L.  In-!.  Co.,  50  Id.  5S7 ;  Trustees 

the  name   of  M.,    to  whom   a  certifi-  etc.  v.  Wheeler,  61  1(1.88;  Sherwood 

cate  was  issued.     M.  atterwards    in-  v.  Meadow  etc.  Co  ,  50  Cal.  412. 

dor-=ed  the   certificate  in   blank    and  '  McNeil  v.   Tenth   Nat.   B<nk,  46 

deliv.-rcd  it  to  the  plaintiff.    He  th^n  N.  Y.  325;  Holbrook  v.  N.   J.   Zinc 

Btole  the  cerlificate  from  the  plaintiff  Co.,  57  Id.  616;  Combes  v.  Chandler, 

and  sold  it  to  a  bona  fide  purchaser.  33  Ohio  St.  178;  Moore  v.  Metropol- 

The  court  held  that  the  title   of  the  iian   Bank,    55    N.  Y.  41;    Farmers' 

purchaser  was  superior  to  that  of  the  National  Bank  v.  Fletcher,  44  Iowa, 

real  owner.  252. 

^Bush  V.  Lathrop,   22  N.  Y.  535;  »  Beckwith    v.  Union  Bank,   9  N. 

Anderson   v.     Nicholas,    28  Id.  600;  Y.  211;  Smith  v.  Felton,  43  Id.  419; 

Reeves  v.  Kimball,  40  Id.  299;  Ma-  Barlow  v.  Meyers,  6  N.  Y.  Sup.  Ct. 

son    V.    Lord,    Id.    476;     Schafer    v.  183;  Meyers  v.  Davis,  22  N.   Y.  489; 

RMilly,  50  Id.  61;  Reid  v.   Sprasrue,  Chance  v.  Isaacs,  5  Paigp,  592;  Brad- 

72    Id.  4o7;    McNeil  v.   Tenth   Nat.  ley  v.  Angeli,  3  N.  Y.  475;  Martin  v. 

Hunk,    55    Barb.    59;     Williams     v.  Kunzmuller,    37    Id.    896;     Watt  v. 

Thorn.  11   Paie;eCh.  459;  Bradley  v.  Mayor,  1  Sandf.  23;  Wells  v.  Stew- 

Rnot,  5Id.  632;  Marvin  v.  Ins^lis,  89  art,  3   Barb.  40;  O^den   v.  Prentice, 

How.   Pr.  329;  Poillon   v.  Martin,  1  83  Id.  160;  Adams  v.    Rodarmel,    19 

Sandf.  Ch.  569;  Judson  V.  Corcoran,  Ind.  839;     Walker  v.  McCay,  2  Mete 

17  How.  612;  Ballard  v.   Burgett,  40  294;    Williams   v.  Brown,   2  Keyes, 

•N.  Y.  314;  Davis  v.  Bechstein,  69  Id.  48 i. 

440 ;  Ingraham  v.  Disborough,  47  Id,  *  McOabe  v.  Grey,  20  Cal.  509. 


190  FORMS  OP  COMPLAINTS.  §  350. 

Bet-off  as  other  choses  in  action  not  negotiable.*  In  order  to 
entitle  a  defendant  to  set  off  a  demand,  it  is  necessary  that  the 
claim  asserted  against  him  slioulil  affect  him  in  the  same  char- 
acter as  the  demand  attempted  to  be  set  off.  Thus  one  sued  as 
an  individual  can  not  set  off  a  demand  due  him  as  an  execut  ir.^ 
When  n  itioe  of  the  assignment  is  required  to  be  given  by  the 
assignee  to  the  debtor,  an  actual  notice  is  not  necessary.  Any 
notice  which  would  put  a  reasonable  man  on  inquiry  is  suffi- 
cient.^ One  who  sues  as  assignee  can  not  maintain  his  title  by 
proof  of  an  assignment  made  after  suit  brought.^  But  a  neg- 
lect to  record  an  assignment  within  the  statut  'ry  period  fixed 
therefor,  incases  where  an  assignment  must  be  recorded,  does  not 
make  it  fraudulent.* 
§  350.    By  Assignee,  where  Plaintiff  is  Trustee. 

Form  No.  71. 

[TiTLB  ] 

The  plaintiff  complains,  as  assignee,  for  the  benefit  of  [state 
whom] ,  and  alleges : 

I.  [State  a  cause  of  action  accrued  to  the  assignor.] 

II.  That  on  the  day   of  ,  18...,  the   said  C.  D. 

assigned  all  his  property,  including  the  said  claim,  to  the  plaint- 
iff, intrust,  for  the  purpose  of  [state  the  purpose]. 

[Demand  of  Judgment.] 

§  351.    Who  are  Trustees,  and  when  may  Sue  Alone. 

The  iirovisions  of  the  various  codes  provide  in  effect,  although 
there  is  some  slight  difference  in  their  language,  that  "an  ex- 
ecutor, or  administrator,  or  trustee  of  an  express  trust,  or  a 
person  expressly  authorized  by  statute,  may  sue  without  joining 
with  him  the  persons  for  whose  benefit  the  action  is  prosecuted. 
A  person  with  whom,  or  in  whose  name,  a  contract  is  made  for 
the  benefit  of  another,  is  a  trustee  of  an  express  trust  w  thin 
the  meaning  of  this  section."^  In  order  to  entitle  a  trustee  to 
sue  alone  it  is  necessary  that  the  trust  should  be  express,  that 
is,  a  trust  created  by  the  direct  and  positive  act  of  the  parties, 
by  some  writing,  deed,  or  will,  or  by  the  proceedings  of  a  court.' 

1  Harris  V.  Burwell,  65  N.  C.  584;  sec.  5;  Dak.,    sec.  66;  Pla.,  sec.  64; 

Leavenson    v.      Lafoiitane,   3    Kans.  Idrtho,  sec.  6;  Ind.,  sec.  4;  Iowa,  sec. 

523;  Norton  v. Foster,  12  Id.  44.  2544;  Kan., sec. 28;  Kv., sec. 33;  Minn., 

*  Barlow  v.  Myers,  6  N.  Y.  Sup.  sec  28;  Mon.,8ec  6;  tie  v.,  sec.  6;  N. 
Ct  183.  Y.,  sec.  449 ;  N.  C,  sec.  57 ;  Neb.,  sec. 

»  Wilkins  V,  Batterman,  4  Barb.  47 ;      80 ;  Ohio,  sec.  27 ;  Or.,  sec.  29 ;  S.  C, 
"Williamson  V.  Brown,  15N.  Y.  354.         sec.  139;  Wash.,  sec.  4;  Wy.,  sec.  84; 

*  Qarrigue  v.  Loescher,   3    Boaw.      "Wis.,  c.  122,  sec.  14. 

578.  ''  Oonsideraat  v.  Brisbane,  22  N.  Y. 

»  Dpnzer  v.  Mundy.  5  Rob.  636  889. 

•Ariz.,  Bee ;  Cal.,  iec.  369 ;  OoU 


§  352.  ASSIGNEES  AND  DEVISEES.  19i 

Among  such  trustees  which  have  been  permitted  to  sue  alone, 
without  joining  the  person  for  whose  benefit  the  action  is  pros- 
ecuted, have  been  included :  assignees  for  the  benefit  of  cred- 
itors;^ one  who  holds  a  security  which  is  to  be  collected  and 
applied  to  the  payment  of  a  debt  due  by  himself  ;^  the  assignee 
of  a  stock  subscription  ;3  the  president  or  treasurer  of  an  in- 
corporate association  ;*  or  the  nominal  proprietor  of  an  indi- 
vidual bank  ;5  trustees  for  the  separate- use  of  married  women  ;^ 
trustee  to  whom  personal  property  is  conveyed  for  the  use  of  a 
husband  and  wife  for  life,  with  remainder  to  their  children,  in 
an  action  to  recover  the  wrongful  conversion  of  the  property 
during  the  life-time  of  the  parents ;'  a  receiver  appointed  in  an- 
other state  ;^  a  grantee  of  lauds  in  trust,  in  actions  for  the  pos- 
session or  to  recover  damages  for  trespass.^  In  California,  the 
priest  who  appears  to  have  charge  of  church  property  is  the 
proper  part}'  plaintiff  in  all  actions  concerning  it.  This  would 
appear,  however,  to  depend  entirely  upon  the  fact  of  in  whom 
the  title  stands,  and  whether  the  society  is  incorporated,  and 
how  incorporated.^" 

§  352.  Persons  with  Wliom  or  in  whose  Name  a  Con- 
tract is  Made  for  the  benefit  of  another,  although  not  neces- 
sarily trustees  of  an  express  trust,  are  made  so  by  the  statute, 
and  may  maintain  an  action  in  their  own  name.  The  circum- 
stances under  which  this  rule  is  generally  applied  are,  where  an 
agent  enters  into  a  contract  in  his  own  name,  and  the  promise 
is  made  directly  to  him,  and  not  to  the  principal.  In  such  case 
the  agent  is  permitted  to  sue  alone,  although  of  course  an  ac- 
tion might  also  be  maintained  in  the  name  of  the  principal. 
And  it  makes  no  difference  as  to  the  agent's  right  to  maintain 
the  action,  whether  the  principal  was  known  or  disclosed  at  the 
time  of  the   contract  or  not.^    As  illustrations  of  all  kinds  of 

1  Mellen  v.  Hamilton  F.  Ins.  Co.,  5  •  Reed  v.  Harris,  7  Robt,  151. 
Duer,  101 ;  Rj-erss  v.  Farwell,  9  BHrb.  ^  Gibbens  v.Gfntrv,  20  Mo.  468;  see 
615;  Lewis  v.  Graham,  4  Abb.  Pr.  also  Richardson  v.  Means,  22  Mo.  495. 
100:  FleU-her  v.  Derrickson,  3  liosw.  »  Runk  v.  St.  John,  29  Barb.  685; 
181;  St.  Anthony's  Mill  Co.  v.  Van-  Lathrop  v.  Rnnpn,  37  Wis«.  807;  Gar- 
dull,  1  Minn.  24*5;  Foster  v.  Br  wn,  ner  v.  Kent,  70  lud.  428;  Hope  Life 
65  I'ld. 234 ;  McClain  t.  Weidenmeyer,  Ino.  Co.  v.  Taylor,  2  R.>bt.  278. 
25  Mo.  364;  Cummins  v.  Barkalow,  4  'Goodrich  v.  Milwukee  24  Wis. 
Keves,  514.  422;  Boardman  v.  Bcikwith,  18Iowa, 

8  Gardinierv.  Kellogg,  14  Wis.  605;  292;  Holden  v.  N.   Y.  &  Erie  Bank, 

Davidson  v.  Elms,    67    N.    C.    22«;  72  N.  Y.  2«0 ;    Tyler  r.  Gransrer,  48 

Moorehead  v.   Hvde,   38  Iowa,  8^2 ;  Cal.  259:  McKinnon  v.  McKinnon,  81 

Thompson   v.   Toland,    48    Cal.    99;  N.  C.  201. 

Clark  V.  Titcomb.  42  Barb.  122.  i»  Santillan  v.  Moses.  1  Cal.  92. 

»  Kimhall  v.  Spicer,  12  Wis.  668.  i'  Morgan  v.  Heed,  7  AbW,  Pr.  215; 

*  Tibbetts  v.  Blood,  21  Barb.  650.  St.  John  v.  Griffith.  2  Id.  198;  Briek- 

*  Burbank  v.  Beach,  16  Barb.  326.  son  v.  Compton,  6  How.  Pr.  471 ;  Con. 


192  FORMS  OF  COMPLAINTS.  §  353. 

agents  who  are  thu3  permitted  to  maintain  an  action  in  tlieir 
own  name,  may  be  mentioned,  ordinary  mercantile  factors,  who 
transact  business  in  their  own  name  ;^  an  auctioneer  ;*  the 
managing  owner  of  a  vessel;^  a  contractor  for  the  benefit  of 
third  parties  ;^  the  outgoing  trustees  of  an  association  ;5  the 
agent  for  a  foreign  principal,  or  offlccr  of  a  foreign  bank  or 
government  ;^  a  sheriff,  for  the  purchase  price  of  property  sold 
on  execution ;'''  payee  of  a  note,  for  the  benefit  of  others  ;8  the 
people,  where  bonds  are  taken  in  their  name  for  the  benefit  of 
individuals,^  and  on  the  same  principle  bonds  given  to  superior 
officers  for  che  faithful  discharge  of  the  duties  of  the  obligor.^" 
On  the  other  hand  one  who  is  a  mere  agent,  not  embraced 
■within  the  description  of  the  statute,  can  not  prosecute  an  action 
in  his  own  name,  on  a  contract  made  in  the  name  of  his  principal.^' 
§  353.  A/erment  of  Trustee — Relation. — In  an  action 
brought  by  an  express  trustee,  or  by  one  in  whose  name  a  con- 
tract is  made  for  the  benefit  of  another,  the  general  rule  of 
pleading,  that  the  plaintiff  must  show  title  in  himself  in  the 
capacity  in  which  he  sues,  prevails.  Unless,  therefore,  the  de- 
scription of  the  obligation,  and  the  breach  thereof,  disclose 
such  facts,  the  complaint  must  make  a  positive  and  issuable 
averment  of  the  trust  or  agency.^^     Thus,  one  who  claims   as  a 

Biderant  v.  Bii^brme,  22  N.  Y.  389;  657;  Mvers  v.  Machado,  6  Duer,  678; 

RowlHiid  V.    Phalen,    1     Bosw.     48;  Peel  v.  Elliott,  16  How.  Pr.  488;    Ue- 

Chelteiitiain  Fire-brick  Co.  v.  Cook,  pub.  ofMox.  v.  Arrangois,  11  Id.  1. 

44  Mo.  20;    Wr  gbt  v.  TintJlev,  30  Id.  '  Armstrot.g  v.  Vronian,    11   Minn. 

889;  Weaverv.  Trustees,  28  Ind.  112;  220;  McKeev.  Lineberger,  69  N.  C. 

Rice  V.  Sdverv,    22   Iowa,  470;   Win-  217. 

ters  V.  Rush,  84  Cal.  13ii;  Ord  v.  Mc-  ^gcantlin  v.    Allison,  12  Kan.  85; 

Koe.  5  Id  .515;     Scantlin  v.  Allison,  Ord  v.  McKee,  6  Cal.  515. 

12  Kfins.  8>;    Noe  v,  Christie,  51  N.  "People    v.    Norton,  5  Spld.  176; 

T.  270;  Hiibbell  v.  Medburv,  53  Id.  Bos.  v.  Seaman,  2  0.  R.  1 ;    People  v, 

98;  Presb.  Soc.  V.  Beach.  8  Hun,644;  Laws,  3  Abb.    Pr.    4-50;     People    v. 

People    V.     Slocum,     1     Idaho,  62;  Walker,    21    Harb.    630;     Hunter  v. 

Thompson  V.   Fargo,    63  N.  Y.  479;  Commissi  )ner8,  10  Ohio  St.  515;  Slate 

Grinnell    v.    Schmidt,  2  Sandf.  706;  v.  Moore,  19  Mo.  309;  Meier  v.  Lester, 

Union  India  Rubber  Co.v.Tomlinson,  21  Id.  112;   Shelbv  Co.  v.  Simmoiids, 

1  E.  D.  Smith,     364;     Van    Lien  v.  83  Iowa.  845;    Annett    v.     Kerr,  28 

Bvrnes,  1  Hilt.  133;  Higgins v.  Senior,  How.  Pr.  324;    People  v.  Townsend, 

8"M.  &  W.  884.  87  Barb.  520;     Baggott  v.  Boulger,  2 

1  Grinnell  v.  Schmidt,  2  Sandf.  706.  Duer,  160. 

2  Bogart  V.  0'R"gan,  1  E.  D.  Smith,  '<>  Still  well  v.  Hurlbert,  18  N.  Y. 
690;  Hulse  v.  Young,  16  .lohns.  1;  374;  Fuller  v.  FuUerlon.  14Rarb.59; 
Minturn  v.  Maine,  3  Seld.  220;  Min-  People  v.  Clark,  21  Id.  214;  People  v. 
turn  V.  Allen.  3  Sandf.  399.  Norton,  9  N.  Y.  176. 

8  Ward  V.  Whitnev.  3  Sandf. -399;  "  Swift  v.  Swift,  46  Cal.  266;  Rob- 
Kennedy  V.  Eilau.  17  Abb.  Pr.  78;  bins  v.  Deverill,  20  Wis.  1-50;  Red- 
Hou;ht.>n  V.  Lvnch.  18  Mitm.  8').  field    v.    Middleton,     7    Bosw.     649; 

*  Row'anl  v.'Phalen,  1  Bo'iw.  43.  Riwlings    v.     Fuller,    31  Ind.    255; 

6  DaViS  V.  G  irr,  2  Seld.  124.  White  v.  Chouteau,  10  Barb.  202. 

«  Consid-ra  .t  v.  Brisbane,  22  N.  Y.  ^^  Freeman  v  Fulton  Fire  Lis.  Co., 

a89;  Hubichi  v.  Pemberton,  4  Saudf.  18  Abb.  Pr.  124. 


§   358.  ASSIGNEES  AND  DEVISEES.  193 

subslituterl  trustee  under  a  will,  should  state  all  the  material 
facts  distinctly  in  his  bill.  If  the  will  provides  two  modes  for 
tho  appointment  of  new  trustees,  he  must  state  in  which  mode 
he  was  appointed.^ 

§  354.  Cestui  que  Trust,  when  may  Sue. — A  cestui  que 
trust  of  an  express  trust  has  no  right  of  action  until  the  trust 
is  denied,  or  some  act  is  done  by  the  trustees  inconsistent  with 
the  trust ;  and  until  then  the  statute  of  limitations  does  not  be- 
gin to  run.  Thus,  when  a  person  takes  a  title  in  his  own  name, 
at  the  request  of  another,  who  furnishes  the  consideration,  the 
former  has  the  right  to  presume  that  he  is  to  hold  it  until  a  de- 
mand is  made  upon  him  for  it.^  And  where  the  share  of  one 
of  several  cestais  que  trust  in  a  trust  fund  is  ascertained  and 
known,  he  may  maintain  a  suit  for  a  breach  of  the  trust  against 
the  trustees,  without  joining  the  other  cestuis  que  ti^ist.'^ 

§  355.  Notice  of  Trust. — Where  an  assignment  is  made 
to  one  as  trustee  of  a  mercantile  firm,  and  he  receives  from  an 
obligor  a  deed  for  land  to  members  of  the  firm,  and  the  firm 
sold  the  land  to  their  successors  in  business,  some  of  the  origi- 
nal firm  being  a  portion  of  such  successors,  the  purchasers  are 
chargeable  with  notice  of  the  trust.* 

§  356.  Trust  Deed. — In  Nevada,  under  section  55  of  the 
statute  concerning  conveyances  (Statutes  of  1861),  a  declara- 
tion of  trust  as  to  land  must  be  by  deed  or  conveyance,  in 
writing,  subscribed  by  the  party  declaring  the  same,  or  by  his 
lawful  agent  thereunto  authorized  by  writing. ^ 

§  357.  Who  may  Assign. — An  administrator  of  an  estate 
in  New  York  may  assign  a  judgment  obtained  there  by  an  in- 
testate against  one  who  has  since  removed  to  California.* 

§  358.     Where  Plaintiff  is  a  Devisee. 

Form  No.  72. 
[Titlk] 

The  plaintiff,  as  devisee  of  A.  B.,  deceased,  complains,  and 

alleges : 

I.  [State  cause  of  action  accrued  to  deceased.] 

II.  That  the  said  A.  B.  was  seised  of  the  estate  hereinbefore 

mentioned,  and  that  he  died  on  the day  of ,  18..., 

at ,  and    by   his   last   will    devised    the   same    to   this 

plaintiff. 

[Demand  of  .Judgment.]  ' 

1  Cruder  v  Hallidfty.  11  Pai^e,  314.        *  Oonnellv  v,  Pfeck,  6  CJal.  848. 
'  White  V.  SheMon,  4  Nev.  R.-p.  2S0.        '  Sime  v.  Howard,  4  Npv,  47-3. 
»  dickering  v.  De  Rochemoiit,  45  N.        •  Low  v.  Burrows,  12  Cal.  181 
H.  67. 

EsTEE,  Vol.  1—13 


194  FORMS  OP  COMPLAINTS.  §  359. 

§  359.  Assets,  Allegation  of. — Where  one  of  several  heirs 
is  sued  on  his  promise  to  pay  the  debt  of  the  ancestor,  the 
j)laintiflf  need  not  allege  that  the  defendant  or  heirs  had  assets.^ 
Where  the  will  by  construction  shows  an  intention  to  cliarge 
the  real  estate  with  the  payment  of  a  legacy,  it  is  not  necessary 
fto  aver  in  the  bill  a  deficiency  of  personal  assets.^  The  above 
iorm  of  allegation  is  sufficient  on  demurrer.' 

§  360.  By  an  Assignee  for  the  Benefit  of  Creditors. 

Fwm  No.  7S, 
[Title.] 

The  plaintiff  as  assignee  for  the  benefit  of  the  creditors  of 

,  complains  of  the  defendant,  and  alleges: 

I.  [State  a  cause  of  action  accrued  to  the  assignor.] 

II.  That  on  the  day  of ,  18..,  at  , 

the  said assigned    all    his    property,    including    the 

said   claim,  to  the  plaintiff  [in  trust  for  the  purpose  of  paying 

all  his 'debts]. 

[Demand  of  JunaMEUT.] 

§  361.  An  Assignee  for  the  Benefit  of  Creditors  is  a 
Trustee  of  an  express  trust,  and  as  such  he  is  entitled  to  sue,* 
or  to  defend  an  action,  without  joinder  of  a  beneficiary.*  He 
must  allege  in  his  complaint  that  he  sues  as  such,  or  the  court 
will  not  relieve  him  from  pa^'ment  of  costs  in  case  he  fails  in 
the  action.^  For  any  other  purpose  this  allegation  is  unneces- 
sary, as  he  is  assignee  of  an  express  trust,  has  the  entire  legal 
title,  and  may  sue  in  his  own  name  without  referring  to  his 
'Character  as  assignee.'  But  an  assignment  by  a  creditor  of  a 
■portion  of  a  debt  does  not  make  the  assignee  joint  owner  of  the 
whole,  and  he  is  not  a  necessary  party  in  a  suit  for  its  recover- 
ery.^ 

§  362.  Assignee  in  Bankruptcy. — Proceedings  in  bank- 
ruptcy do  not  affect  the  previously  acquired  right  of  an  assignee 
of  a  chose  in  action  to  sue  in  the  bankrupt's  name.^  In  Con- 
necticut, the  insolvent  act  of  1853  provides  that  all  the  prop- 
erty of  the  debtor  shall  be  vested  in  the  trustee,  and  that  the 
trustee  may  sue  in  his  own  name  on  all  choses  in  action.^** 

»  Eltingv.  Vanderlyn,4  Johns.  2-37.  Sella  v.  Hubbell ;  2  Johns.  Ch.  894; 

•  Lewis  V.  Darling,  16  How.  U.  S.  1.  Springer  v.  Vanderpool,  4   Edw.  Oh. 

•  Spier  V.  Bobinson,  9  How.  Pr.  8«2 ;  Wakeman  v.  Grover,  4  Paige 
825.  Ch.  23 ;  Dias  v.  Bouchaud,  10  Id.  445. 

♦1  Daniell,  224;  Sprajyg  v.  Binlcps,         'Murray  v.  Hfudrickson,    6   Abb. 

6Ve8.  5S7;  De   Golls  v.Wird.  3    P.  Pr.  96;  1  Bosw.  635. 
"Wms.   811;    Kaye    v.     F.'sbmke,    8         ^  Biitterfield  v.  Macomber,  22  How. 

Sim.  2«;    Dyson  v.  Hornby,  7  De  G.  Pr.  150. 
M.  &  G.  1.  ■  Leese  v.  Sherwood,  21  Cal.  162. 

»  Coll.'t  V.  Woolaston,  8  Bro.  C.  0.         •  Haves  v.  Pike,  17  N.  H.  564. 
228.;  Uoyd  T.  Lauder,   5  Mad.  282;         ^  Hart  v.  Stone,  80  Cona.  94. 


§   3f5.       JOINT  TENANTS  AND  TENANTS  IN  COMMON.         195 

In  an  action  brought  by  an  assignee  in  bankruptcy,  as  the 
title  of  the  plaintiff  does  nDt  depend  upon  the  voluntary  acts 
of  the  pirties,  a  gen »ral  allegation  of  assignment  is  not  suffi- 
cient. The  plaintiff  must  set  out  the  facts  in  connection  with 
his  app  )intment.  Such  facts  must  be  alleged  in  a  manner  suf- 
ficient to  show  thai  an  appointment  has  been  made,  and  so  as 
to  be  triable.^  An  allegition  that  the  plaintiff  was  duly  ap- 
pointed on  a  certain  day  is  insufficient.^  In  an  action  brought 
by  a  receiver  of  a  bank,  a  complaint  which  showed  such  fact, 
and  that  the  appoint-nent  was  made  by  the  supreme  court,  by 
an  order  made  upon  a  certain  day,  upon  filing  security,  and 
that  such  security  had  been  filed  was  held  sufficient.'  In  Ohio 
a  similar  averment  was  held  good  on  demurrer,  although  it 
could  be  taken  advantage  of  on  motion.*  It  is  irregular,  how- 
ever, to  allege  that  the  demand  is  the  property  of  the  assignor, 
or  that  the  defendant  is  indebted  thereon  to  the  assignor. * 

§  363.  Who  May  Assign. — One  partner  of  a  firm,  sole 
manager,  his  copartners  being  absent  at  a  great  distance,  may 
assign  the  firm  property,  in  trust,  for  the  benefit  of  creditors, 
if  necessary  for  their  protection.* 

CHAPTER  n. 

JOINT  TENANTS  AND  TENANTS  IN  COMMON. 

§  364.    By  Joint  Tenants  and  Tenants  in  Common. 

Form  No,  74m 
[Trn,B.] 

The  plaintiffs  complain  and  allege : 

I.  That  the  property  hereinafter  mentioned  and  described  is 
owned  in  common  by  the  plaintiffs. 

II.  [State  cause  of  action.] 

[Demand  of  JtroGMKNT.] 

§  365.    Who  are  Tenants  in  Common  or  Joint  Tenants. 

The  rule  which  prevails  in  a  majority  of  the  states  of  the  Union 
is,  that  when  two  or  more  persons  succeed  by  inheritance  to  the 
same  land,  or  it  is  conveyed  to  them  by  the  same  instrument, 
without  express  direction  to  the  contrary,  their  interests  are 
those  of  tenants  in  common,  and  not  of  joint  tenants.'' 

» White  V.  Low,  7  Barb.  20'?.  »  Palmer  v.  Smedley,  28  Bsrb.  468; 

«Gillet  V.  Fairchild,  4  Denio,  80;  S.  C,  6  Abb.  Pr.  205;  compare  Myeni 

"While  V.  Joy,  3  Kern.  83;  Bangs  v.  v.  Mnchado,  Id.  198;  S.  C,  14  How. 

Mcltitosh,  23  Barb.  591.  Pr.  149. 

•Stewart  v.  Beebe,  28  Bnrb.  84.  •  Forbes  v.  Scannell,  13  Cal.  242. 

«  Schrook  v.  City  of  Clovelaud,  29  ^  1  Wash,   on  Beal  Prop.  409,  and 

Ohio  St.  499.  note. 


196  FORMS  OP  COMPLAINTS.  §  366. 

§  3()G.  Lsgal  Actions  by  Owners  in  Common  or  Joint 
Owners  of  Land. — The  provisions  of  the  codes  of  the  various 
states  provide  that  '*  all  persons  having  an  interest  in  the  sub- 
ject, of  the  action,  and  in  obtaining  the  relief  demanded,  may 
be  joined  as  plaintiffs,  except  as  otherwise  provided,"^  and  "of 
the  parties  to  the  action,  those  who  are  united  in  interest  must 
be  joined  as  plaintiffs  or  defendants ;  but  if  the  consent  of  any 
one  who  should  have  been  joined  as  plaintiff  can  not  be  ob- 
tained, he  may  be  made  a  defendant,  the  reason  thereof  being 
stated  in  the  complaint."^  In  the  interpretation  of  these  pro- 
visions in  reference  to  actions  brought  by  tenants  in  common  or 
joint  tenants  of  land,  it  has  been  held  that  in  an  action  to  re- 
cover an  entire  rent  from  the  lessee,  or  from  one  to  whom  it  has 
been  paid,  all  the  tenants  in  common  may  join.^  This,  however, 
is  unnecessary,  as  one  may  maintain  an  action  to  recover  his 
moiety  of  the  rent,  although  it  may  be  entire*  To  recover  for 
torts  done  to  the  land,  such  as  nuisances  and  trespasses,  the 
rule  is  the  same  as  it  was  at  the  common  law,  and  all  the  ten- 
ants in  common  must  join.^  And  the  same  rule  applies  in  ac- 
tions to  recover  for  fraud  in  the  sale  of  land  to  several  tenants 
in  common.^ 

§  367.  Actions  to  Recover  Possession  of  Land. — In 
actions  to  recover  the  possession  of  land,  all  the  owners  in  com- 
mon may  join.'  Or  each  may  sue  to  recover  his  undivided 
share.®  Whether,  in  such  action,  one  tenant  in  common  can 
recover  more  than  his  undivided  share,  where  the  entire  land  is 

>  Arizona,  sec.  12 ;    California,  sees.  *  Cruerer  v.  McLnury,   41  N.  Y.  219 ; 

878,381;  Colorado,    see.  II;  Dakota,  Jones  v.  Fclch,  3  Bos'w. 63;  Porter  v. 

sec  70;  Florida,  sec.  68;    Idaho,  sec.  Bleiler,  17  Barb.  149. 

12;  Indiana,  sec  17;  Iowa.  sec.  2545;  &  De  Puy  v.  Strong,  87  N.  Y.   372; 

Kansas,  sec  35;    Kentucky,  sec  34;  Hill  v.  Gibbs,    5    Hill,  riG;    Parke  v. 

Montana,  sec  12;  Minnesota,  sec  — ;  Kilham,    8    Cal.  77;    Wausau  Boom 

Missouri,  art.  1,  sec  4 ;    Nevada,  sec.  Co.  v.  Plumer,  49  Wis.  112;  Schiffer 

12;  New  York,  sec   44i);  Nebraska,  v.  Eau  Claire,  51  Id.  385;  Seymour  v. 

sec  37;  North  Carolina,  sec.  60;  Ore-  Carpenter,   Id.  418;    Van  Dcusen  v. 

gon,  sec    380;     South  Carolina,  sec  Young,  29  Barb.  9;  Samuels  v.  iJlan- 

140;   Washington,  sec.  8;   Wisconsin,  chard,  25  Wis.  329 ;  Alford  v.  Uewin, 

0.  122,  sec  18;  Wyoming,  sec.  40.  1  Nev.  207;    May  v.  Slade,    24  Tex. 

2  Arizona,  seci4;    California,  sec.  205;   White  v.  Brooks   43  >.  H.  402; 

882;  Colorado,  sec.  13;  Dakota,  sec.  Bullock  v.  Hayward,  10  Allen,  460; 

72;  Florida,  sec.  40:    Idaho,  sec  14;  Mobley  v.  Bruner,  59  Pa.  St.  481. 

Indiana,  s^ec  19 ;  Iowa,  sec.  2548 ;  Kan-  •  Lawrence  v.  Montgnmerv,  37  Cal. 

sas,  sep.37;  Kentucky,  sec.  36;    Min-  183;  Foster  v.  Elliott,  33  Iowm,  ■_:]6. 

nesola,  sec. — ;  Missouri,    art.  1,  sec  ^  Hasbrouck  v.  Buiice,  65  J.  Y.  472; 

6;  Montana,  sec.  14;  Nevada,  sec.  14;  Cook  v.  Wardens  of  St.  Paul's  Ch.,  5 

Nebraska,   sec.  39;    New  York,    sec.  Hun,  293;  Cruger    v.    McLaury,    41. 

448;  North  Carolina,  sec  62;  Oregon,  N.  Y,  219;  Fisher  v.  Hall,  Id.  416. 

Bee   381;  South   Carolina,    sec  142;  *  Morenhautv.  Wilson.  52Cal.  262; 

Washington,    sec.   8;    Wisconsin,  c  Goller  v.  Fett,  30  Cal»  481;  Covillaud 

122.  sec  20;  Wyoming,  sec  42.  v.  Tanner,  7  Id.  8^ 

«  MarshaU  v.  Moseley,  21  N.  Y.  280. 


§  368.        JOINT  TENANTS  AND  TENANTS  IN  COMMON.         197 

held  adversely  by  the  defendant,  is  a  question  on  which  the  au- 
thorities materially  differ.  In  some  of  the  states  the  recovery  of 
the  tenant  in  common  is  limited  to  the  amount  to  which  he  can 
show  title  in  himself ;  that  is,  to  his  own  share.^  On  the  other 
hand,  the  rule  is  equally  well  settled  in  other  of  the  states, 
that  one  tenant  in  common  can  recover  possession  of  the  entire 
premises  as  against  a  mere  trespasser  without  joining  his  co- 
tenants,  eitlier  as  plaintiffs  or  defendants.^  The  reasons  of  this 
rule  are  that  one  tenant  in  common  has  a  right  of  enjoyment  of 
and  possession  to  the  whole  of  the  common  property,  and 
although  he  can  not  possess  in  severalty  before  partition,  still 
each  and  every  one  of  them  has  a  right  to  enter  upon  and  occupy 
the  whole  of  the  common  lands,  and  every  part  thereof. ^  In 
most  of  the  states,  although  their  codes  permit  actions  to  be 
brought  either  by  all  the  tenants  in  common  for  the  whole  of  the 
common  property,  or  by  one  for  his  undivided  share,  they 
do  not  permit  actions  to  be  brought  by  more  than  one  and  less 
than  all.*  In  California,  however,  a  special  provision  of  the 
code  permits  any  number  of  joint  owners,  or  owners  in  common, 
either  to  commence  or  to  defend  such  actions. ^  And  the  same 
is  so  in  Missouri  and  Nevada.^  The  code  of  California  also  pro- 
vides that  ' '-  any  two  or  more  persons  claiming  any  estate  or 
interest  in  lands,  under  a  common  source  of  title,  whether 
holding  as  tenants  in  common,  joint  tenants,  coparceners,  or  in 
severalty,  may  unite  in  an  action  against  any  person  claiming 
an  adverse  estate  or  interest  therein,  for  tlie  purpose  of  deter- 
mining such  adverse  claim,  or  of  establishing  such  common 
source  of  title,  or  of  declaring  the  same  to  be  held  in  trust,  or 
of  removing  a  cloud  upon  the  same."' 

§  368.  Action  by  Tenant  in  Common  against  Co- 
tenant. — In  an  action  by  a  tenant  in  common  against  his  co- 
tenant,  in  the  sole  possession  of  the  premises,  to  recover  a  share  of 
the  profits  of  the  estate,  a  complaint  which  avers  a  tenancy  in 

»  Mobley  v.  Rruner,  59  Ph.  St.  481 ;  »  Tevis  v.  Hicks,  38  Cnl.  234;    Car- 

Minke  V.    McNHmee.    30     Md.    294;  pentier  v    VVehsler, '27  Id.  545. 

Grav  V   Giveiis.  26   Mo.  291;  Dewey  ♦  Fisher  v.  Hall.  41  N  Y.  416;  Hub- 

V.  Mr  wii,  2  I'ick.  8S7.  b«ll  v.  Lnrcri,  oS  Id.  237;     Hrtsbrouck 

«  Treat  V.  Rillv.  35  Cal.  129;  H«rt  v.  Bunce.  62  Id.  475 

V.  R.il)ert80  1.   21ld.  34*^:    VViiithr-.p  »  Cal.  Code  Uiv.  Proc,  8eo.384;  Gol- 

V.  Grimes,    Wri.,'ht,    330;     Uolph  v,  ]er  v.  F-'tt.  30  Oal.  4SI  ;    Touchard  v. 

Barney,  5  Or.  191;     French    v.  Ed-  Keyes.  21  Id.  202;  Reynolds    v.  Hos- 

wardi,   5  Saw.    266;      Le   Franc    v.  mer,  4)  Id.  616. 

Kirhinond,  Id.  601;  Shan.n  v.  Da-dd-  «  Wav'.  Stat.   5.58,   spc.    3;    Comp. 

Bon,  4  N'-v.  416:     Hibbard  v.    Foster,  Law^  N'-v,  1873,  sec.  1077. 

24^"!  M2;     Kobinson  v.   Iloberls.  31  '  CalifoniiaCode  of  Civ.  Proc,  sec. 

Conn    145;  Collier  v.C.Theit.  15  Cal.  381. 
18-6 ;  Stark  v.  Barrett,  16  Id.  Sul. 


198  FORMS  OP  COMPLAINTS.  §  368. 

common  between  the  parties ;  the  sole  and  exclusive  possession 
of  the  premises  by  the  defendant;  the  receipt  by  him  of  the 
rents,  issues,  and  profits  thereof ;  a  demand  by  the  plaintiff  of 
an  account  of  the  same,  and  the  payment  of  his  share ;  the  de- 
fendant's refusal ;  and  that  the  rents,  issues  and  profits  amount 
to  eighty-four  thousand  dollars,  is  insuflElcient  to  support  the  ac- 
tion. The  action  is  a  common-law  action  of  account;  and, 
viewed  in  this  light,  the  complaint  should  aver  that  the  defend- 
ant occupied  the  premises  upon  an  agreement  with  the  plaint- 
iff, as  receiver  or  bailee  of  his  share  of  the  rents  and  profits.  It 
is  essential  to  a  recovery  that  it  be  alleged.^  A  tenant  in  com- 
mon may  maintain  a  bill  in  equity  against  his  co-tenant  who  has 
exclusively  occupied  a  salt  well  and  works,  and  a  coal  mine,  the 
common  property,  for  an  account  of  rents  and  profits.  The 
defendant,  in  such  case,  is  liable  for  "receiving  more  than 
comes  to  his  just  share  or  proportion,"  under  Stat.  4  Anne,  c. 
16,  sec.  27.2  A  tenant  in  common  of  lands,  employed  as  agent 
by  common  agreement  between  himself  and  co-tenant,  to  take 
charge  of  the  land,  make  sales  thereof  at  certain  prices,  receiv- 
ing a  commission  of  five  per  cent  on  sales,  may  sue  his  co-ten- 
ant for  services  in  respect  to  the  land  outside  of  selling  it.' 
Several  persons  owning  a  tract  of  mining  claims,  as  tenants  in 
common,  acting  under  a  company  name,  can  not  in  tl  e  name 
of  the  company,  take  or  hold  the  interest  of  any  one  or  more 
by  forfeiture.^  If  two  are  tenants  in  common  of  personal  prop- 
erty, and  the  sheriff,  in  an  action  against  one  of  them,  attaches 
his  interest  in  the  common  property,  he  may  take  all  the  prop- 
erty into  his  possession  without  being  guilty  of  a  conversion  of 
the  other  tenant's  share. ^ 

>  Pico  V.  Columbet,  1 2  Cnl.  414.  *  Wisenoan  ▼.  McNultv.  25  Cnl.  230 ; 
«  Karley  v.  Friend,  10  GratU  21.            Dutch  Flat  Co.  v.  M<>..i  ey  li  Id.  684. 

>  Thompson  v.  Salmon,  18  Cal.  632.        *  Veacb  t.  Adams,  51  CaL  ti09 


§  371.  C0RPURATI0N3.  199 

CHAPTER  m. 

CORPORA-TIONS. 

§  369.    By  a  Foreign  Carporation. 

Form  No,  76, 
[Titlk] 

Thb COMPA.NT,  Plaintiff,  1 

nqainut  V 

John  Dok,  Defendant,  j 

The  plaintiff  complains,  and  alleges: 

I.  That  it  is  a  corporation  organized  and  existing  under  the 
laws  of  the  state  of  Nevada,  for  the  purpose  of  [here  state  the 
purpose],  and  is  doing  business  as  such  in  its  said  corporate 
name. 

II.  [State  the  cause  of  action.] 

[Demand  of  Judgmbnt] 

§  370.  Existence  of  Foreign  and  Domestic  Corpora- 
tions.— Although  a  corporate  body  may  carry  on  business  be- 
yond the  territorial  limits  of  the  state  which  created  it,  it  has 
no  corporate  existence  beyond  those  limits,^  and  a  corporation 
which  owes  its  existence  to  the  laws  of  several  states  must  be 
considered  as  a  domestic  corporation  in  each  of  such  states.* 
In  the  latter  case  each  charter  creates  a  legal  entity  to  be  recog- 
nized within  its  own  state. ^  In  the  case  of  a  foreign  corpora- 
tion its  existence  is  a  question  of  fact,  which  it  has  been  held 
is  for  the  jury  to  determine.*  The  right  of  a  domestic  corpora- 
tion to  act  as  such  cannot  be  questioned  collaterally.^  And 
where  defendants  are  alleged  to  be  a  corporation  doing  busi- 
ness within  the  state,  courts  will  not  presume  as  a  matter  of 
law  that  it  is  a  foreign  corporation.^  The  national  banks 
organized  and  doing  business  under  the  acts  of  congress  are 
to  be  rej^arded  as  foreign  corporations,  within  the  provisions  of 
the  code  of  procedure  authorizing  actions  to  be  brought  and 
attachments  to  be  issued  against  corporations.' 

§  371.  Rights  and  Liabilities  of  Foreign  Corporations. — 
When  a  foreign  corporation  comes  by  its  officers  within  the  juris- 

1  D'ly  V.  Newark  India  Rubber  Co.,  *  Li  ndaur  v.  Delaware  Ins.  Co.,  18 

1    Blatchf.  «-28;  IJank   of  Aui^usta  v.  Ark.  4'il. 

E«rle,  13  Pet.  588;  Ohio  &  M.  K  R.  '  Drtun  v.  Davis,  51  Cal.  407. 

Co.  V.  Wheeler,  1  Bl  tck.  '28).  •  Acome  v.  American  Mineral  Co., 

*  Slate   V.  Northern    CenirHl    Rnil-  11  H.>w.  Pr.  24. 

wav   Co.,    18    Sid.  193;   Spragne    v.  '  IJ  )wen    v.    Pir'it    Nat    Bank    of 

Hartford  etc.  R.  R.  Co.,  6  R.  I.  233.  Medina.  34  How   Pr.  40^;   Cooke  V. 

»()hio&  Mid8.R.R.  Co.  V.Wheeler,  State   Nnt.  Bmk  of  Boston,  8  Abb. 

1  Black. 2«ti.  Pr.,  N.  S.,  3ia. 


200  FORMS  OF  COMPLAINTS.  §  372. 

diction  of  another  state  to  engage  in  business,  it  becomes  amen- 
able to  the  laws  of  the  latter  state,  and  can  not  escape  the  conse- 
quences of  its  illegal  acts  by  setting  up  its  existence  under  a  for- 
eign government.^  Such  corporations  are  deemed  "  persons," 
within  the  meaning  of  the  statute  relating  to  taxation,  unless  a 
different  intent  is  indicated  in  the  statute.^ 

In  New  York  one  foreign  corporation  may  sue  another  in  the 
courts  of  that  state,  upon  a  cause  of  action  arising  in  it.3  But- 
a  complaint  against  a  foreign  corporation  must  either  allege 
that  the  plaintiffs  are  residents  of  that  state,  or  that  the  cause 
of  action  arose,  or  the  suject  of  the  action  is  situ  ated,  within 
the  state.  If  such  allegations  are  omitted,  the  complaint  may 
be  dismissed  on  motion.*  A  corporation  created  by  the  laws  of 
one  state,  and  composed  entirely  of  citizens  of  that  state,  is 
not  entitled  to  all  the  privileges  and  immunities  of  citizens  of 
another  state  in  which  it  may  be  engaged  in  business.  ^  Nor  is 
it  entitled  to  privileges  which  by  the  statutes  of  the  latter  are 
confined  to  corporations  created  by  the  laws  of  that  state.^ 
Nor  does  the  provision  of  the  United  States  constitution,  guar- 
anteeing to  citizens  of  each  state  all  the  privileges  and  im- 
munities of  citizens  in  the  several  states,  prevent  a  state  from 
regulating  or  restricting  the  business  of  a  corporation  created 
by  the  laws  of  another  state,  and  imposing  terms  on  its  right 
to  cirry  on  business  withiii  its  boundaries.''  In  a  recent  case  in 
the  court  of  appeals  of  New  York,  the  nature  and  extent  of 
state  jurisdiction,  and  the  duty  of  the  comity  which  one  state 
owes  to  foreign  states,  were  considered  and  explained.^ 

§  372.    By  or  against  a  D3in3Stic  Carporation. 

Form  No.  76. 
[Title.] 

The  plaintiff  complains,  and  alleges : 

I.     That  it  is  a  corporation  organized  and  existing  under  the 

laws  of  this  state,  and  as  such  doing  business  in  its  corporate 

1  Austin  V.  N.  Y.  &  Erie  R.  R.  Co.,  Ducat  v.  Chicago,  10  LI  410;  Liver- 

1  Dui- h.  381;   People  V.   Cent.  R.  R.  pool    Ins.   Co.  v.    Ma*<Kcliu>eits,    Id. 

Co.  of  N.  J.,  48  Barb.  478;  Warren  667;  Ins.  Co.  v.   Morse,   20  Id.  457; 

Mfg.  Co.  V.   JEtna  Ins.   Co.,  2   Paine,  Louisiana  v.   Lathrop,    10    La.    Ann. 

601.  398;  Doyl«  v.   Continental  Ins.    (.'o., 

*  British   Comnn.   Life    Ins.  Co.   v.  94    U".  S.  540;  Lamb  v.  Lanit»,  6  Riss. 
Com' rs  of  Taxes,  28  How   Pr.  41.  420;    Hoffman  v.   Bftaks,  41    Ind.  1; 

'Bank  of  Commerce  v.  Rutland  «&  Risina;  Sun  Ins.  Co.  v    Slauijhii'r,  20 

"Wash.  li.R.Co.,  10  How.  Pr.  1.  Id.  520;   Wash.  Co.    M.   Ins.    Co.   v. 

*  House  V.  Cooper,  16  How.  Pr.  292.  Histinsr,  84  Mass.  398;   Williams   v. 
»  Bank  of  Augusta  v.  Earle,  13  Pet.  Cheney,  74  Id.  20  i ;  Ins.  C.  v.  N.  O., 

519.  1   Woods,  89;   Ex  parte  R  .binson,  12 

*  Mvprs    V.    Manhattan    Bank,    20      Nev.  263;    Ex  parte  Cohn,  1:{  Id.  424. 
Ohio.  283.  *  -M-rrick  v.  Van  Saatvoord,  34  N. 

»Paul    V.  Virginia,  9  Wall.    168;     Y.  208. 


§  373.  CORPORATIONS.  201 

name  of  [insert  name  of  corporation],  [or  that  the  defendant  is 
a  corporation  created  by  and  existing  under  the  laws  of  this 
state] . 

II.   [State  cause  of  action,  etc.] 

[Demand  of  Judgmbnt.} 

§  373.  Allegation  of  C  ^rp orate  Existence. — In  the  com- 
imn-Iaw  system  of  plea  ling,  in  an  action  brought  by  a  corpora- 
tion, the  rule  was  established  by  the  weight  of  authority,  that 
the  declaration  need  not  contain  an  allegation  of  corporate 
existence,  although  the  plaintiff  is  not  such  a  corporation  that 
its  existence  will  be  judicially  taken  cognizance  of.^  Under 
such  system  the  defendant  might  join  issue  on  the  fact  of  the 
plaintiff's  corporate  capacity,  so  as  to  compel  it  to  give  evi- 
dence thereof.  How  such  issue  was  joined  differed  in  the  several 
states.  In  England,  and  in  mvay  of  the  states,  pleading  the 
general  issue  was  sufficient.^  On  the  contrary,  other  states  estab- 
lished the  rule  that  by  pleading  the  general  issue,  the  plaintiff's 
corporate  capacity  was  admitted,  and  if  the  defendant  wislied  to 
raise  an  issue  to  such  fact  it  must  be  by  a  plea  in  abatement  or  a 
plea  in  bar.-"^ 

In  those  states  which  have  adapted  codes  of  procedure,  the 
q  1  'sti  )n  whether  or  not  a  corporation  must  allege  its  corporate 
ex  st^-nce,  in  an  action  bringiit  by  it,  has  been  answered  in  so 
vaxny  ways  that  it  is  difflju'.t,  if  not  impossible,  to  reconcile 
the  decisions.  Some  of  the  states  have  made  special  enactments 
which  cover  this  question.  Thus  the  code  of  Iowa  provides 
that  "  a  plaintiff,  suing  as  a  corporation,  partnership,  executor, 
guardian,  or  in  any  other  way  implying  corporate,  partnership 
representative,  or  other  than  individual  capacity,  need   not  state 

1  Ana:.  &  Ames  on  Corp.,  pec,  632,  A'lams  Express  Co.  v.  Hill,  43  Ind. 

(n)  2;  Hniri^  V.  Aluskinijum  Mi^.  Co.,  lo7. 

4  liliifkt.  2)7;  |{ftiiiinii:ton  Iron  (J'l.  v.  ^  Rees  v.  Conocophpasrue  Bank,  5 

Rutliertnrd.  18  N.  J.  L.  107;  R.'e-<  v.  Rand.  326;  Hnrs^frave  v.  Bmk  of  Illi- 

CondCochHitgue  Bank,    6  Rnnd.  SM;  nois,    Breese,  122;  .Jones  v.  Bmk  of 

Richardson  V.  8t.  .Joseph  Iron  Co.,  .5  Illinois,    Id.  124;    Lewis  v.    bunk  of 

Blackf.  146 ;  Zion  Church  v.  St.  Peier's  Kv.,  12  Ohio,  162 ;  Henriques  v.  D  itch 

Church,  6    Walts  &  S.    215;    Union  West  India  Co.,  2   Ld    Kiym.  1535; 

Mut.  Ins.  Co.  V.  Osgood,  1  Duer.  707;  Jiickson    v.  Plumbe,   8  Johns.    878; 

Keiinedvv.  Cotton,  2S  Ba^-b.  59;  La  Dutchess  Mfg.  Co.  v.    I). vis,   14  Id. 

Favettelns  Co.  v.  Rogers,  ;^0  Id.  491 ;  2 15;  Bank  of  Auburn  v.  W-.-d,  19  Id. 

Phoenir  Bank  v.  Donneli,  41   Id.  571 ;  SOi;    McDonald  v.  NeiUon,  2  Cow. 

Fryev.  Bankof  Illinois,  10  111.   H.S2;  139. 

Hea<te>  V.  Cincinnati   etc.   K.  R.    16  ^  Society  etc.  v.  Pnwlet,  4  Pet.  480; 

Ind.  276;  German    Ref.    Ch.  v.   Von  Zion  Church  v.  St.  Peinr's  Church,  5 

Puechelstein,  27    N.  J.    Eq.  30;  Qij-  \ Vntts  «&  8.  2 1 5 ;   Chri-itian  Society  v. 

lelt  V.   Amerif-an  etc.  Ware  Co.,    29  Maconober,  3   Mete.  2-i5;  iSchoo'  Di«- 

Gratt.  665;  Od  I  Fellows'  Bid.  A^soc.  trict  v.  Bl  lisdell,  6    N.  H.  197;Ling- 

V.  Hog-in,   28    Ark.   261;    Wilson    v.  d'ln  V.  Potter,   11  Ma*s.   31  i;  l}..stoa 

Bprague  M.   M.    Co.,    65    Ga.  672 ;  Type  Fouudry  v.  S^oouer,  5  Vt.  93. 


202  FORMS  OP  COMPLAINTS.  §  373. 

the  facts  constituting  such  capacity  or  relation,  but  may  aver 
generally,  or  as  a  legal  conclusion,  such  capacity  or  relation; 
and  when  defendant  is  held  in  such  capacity  or  relation,  a 
plaintiff  may  aver  such  capacity  or  relation  in  the  same  general 
way."^  In  Minnesota  it  is  provided,  that  "  in  actions  by  or 
against  corporations  created  by  or  under  the  laws  of  this  state, 
it  is  sufficient  to  refer  in  the  complaint  or  answer,  to  the  act  of 
incorporation,  or  the  proceeding  by  which  such  corporation  was 
created."  In  that  state  it  has  been  held,  that  where  the  statute 
creating  the  corporation  requires  certain  acts  to  be  done  before 
it  can  be  considered  in  esse,  the  complaint  must  show  that 
such  acts  have  been  done.^  In  California,  the  allegation  that 
the  plaintiff  is  a  corporation,  organize  I  and  existing  under  the 
laws  of  the  state,  has  been  held  on  demurrer,  a  sufficient  alle- 
gation of  the  plaintiff's  corporate  capacity.^  And  the  same 
allegation  has  been  held  sufficient  in  Iowa  under  the  statute ;  * 
and  in  Minnesota.'  In  Kansas  the  common-law  rule  seems  to 
have  been  adopted,  and  no  allegation  that  the  plaintiff  is  a  cor- 
poration is  essential.^  And  the  same  is  true  in  Indiana.'  In 
Wisconsin  it  is  provided  by  statute,  that  the  plaintiff  need  not 
prove  its  corporate  existence,  unless  it  has  been  specially  de- 
nied, and  that  the  allegation  thereof  miy  be  made  by  reference 
to  the  title  of  the  act  of  incorporation.  And  this  rule  applies 
to  foreign  as  well  as  to  domestic  corporations. ^  In  New  York, 
in  suits  by  a  domestic  corporation,  it  is  not  necessary  to  allege 
the  plaintiff's  incorporation,  because  by  the  provisions  of  the 
revised  statutes,  which  have  been  held  to  be  in  force  notwith- 
standing the  enactment  of  the  code  of  procedure,  proof  of  such 
incorporation  was  not  necessary,  unless  the  defendant  specially 
denied  it.'    In  the  case  of  a  foreign  corporation,  however,  there 

1  Code,  1873,  sec.  2716;  Code  Proc,  Cross,  18  Id.  109,    In  this  Initpr  case 

eeo  98.  it  was  held  that  in  an  aeiit>ii  by  a  for- 

•  St.  Paul  Division  No.  1  v.  Brown,  eijjn  insurance  compHny  to  ix over 
9  Minn.  157.  money  loaned,  it  is  not  n-  ct'.«.«ary  to  set 

•  California  Steam  Nav.  Co,  v,  out  in  the  complaint »«  Acec  »^/ 6a  that 
Wright,  6  Cal.  258.  portion  of  the  plainlitrsclnirlir  which 

•  Root    V.  Illinois   Cent.   R.  R.,  29  conf'-r*  the  power  to  loan  nuinev. 
lowH,  102;  Savings  Bank  v.  Horn,  41  *  Shoe  &  Leather  Hank  v.   liiown. 
Id.  55.  9  Al.b.  Pr.  218;  PhoBnix  liank  v  Don- 

6  Broome  V.  Galena  etc  Packet  Co.,  nell,  40  N.  Y.  410;  Fulton  F  rt*  Ins. 

9    Minn.   239;    Dodge    v.  Miiuiesola  <<>.   v.    Baldwin,  87    Id*  Q4H:   Union 

Plastic  etc.  Co.,  14  Id.  49.  Marine  Ins.  Co.    v.   Osiroi.d.  1  Duer, 

•  Rvan  V.  Farmt^rs'  Bank,  5  Kan.  707;  Canandarqua  Acmltinv  v.  Mc- 
658;  Campbell  V.  Blanke.  13  Id.  «2.  Kcihi  if,     !!•    Uun,    til' ;     Acotue    v. 

'0"D()nMld  V.  Evansville  etc.  R.  R.  American   Min.  C<'..  U  H.'W.  Pr.  24; 

Co..  14  Ind.  259.  Lifrlile    v.    Everett    Fire    Ins.  <'o.,  6 

•  R.  S.,  c.  118,  sees.  8,  11 ;  Tarmers'  B..>w.  71H;  La  Fayette  Ins.  Co.  v. 
LoMn  eir.  Co.  v,  Fisher.  17  Wis.  114;  R  irors.  80  Barb.  491;  Kiiz  dMahiort 
Cunnecticut    MuU    Life    Ins.  Co.    v.  Miy.  Co.  v.  Campbell,  13  Abb.  Pr.  86. 


§  374.  CORPORATIONS.  203 

is  no  such  statute  applicable,  and  its  existence  must  be  alleged, 
and  proved  on  the  trial.^  It  is  not  necessary,  however,  to  set 
forth  the  specific  powers  of  the  corporation  to  enter  into  the 
transaction  under  which  the  cause  of  action  arose. ^  But  where 
an  officer  of  a  foreign  corporation  sues  his  in  own  name  on  be- 
half of  his  company,  his  complaint  must  state  facts  showing 
his  authority  to  sue  on  their  behalf.  Merely  alleging  authority 
is  not  enou  fh.3  And  whenever  it  is  necessary  to  aver  the  exist- 
ence of  a  corporation,  it  m  ly  be  done  by  referring  to  the  title 
of  the  act  incor[)orating  it,  and  the  date  of  its  passage.  The 
substance  thereof  need  not  bi  set  forth.*  Where  the  original 
act  is  referred  to  in  the  complaint,  a  vague  reference  to  other 
general  statutes  affecting  it  does  not  render  the  co  nplaint  de- 
muirable ;^  but  ihe  title  of  the  act  must  be  set  forth  with  ac- 
curacy.^ 

§  374.  Collateral  Attack  on  Carporats  Existence. — 
Where  the  plaiutiff  enters  into  a  contract  with  a  defendant,  by 
a  corporate  name,  and  afterwa  ds  sues  it  as  such  corporation, 
the  general  rule  established  by  the  weight  of  authority  is,  that 
the  defendant  is  estopped  to  deny  its  corporate  existence.''^  The 
civil  code  of  California,  which  provides  a  general  law  for  the 
formitionof  corporations,  his  enacted  that  "if  a  corporation 
does  n)t  organize  and  com  amoe  the  transaction  of  its  business 
or  the  cOiistfucti^n  of  its  woi'lcs  within  one  year  from  the  date 
of  its  incorporation,  its  corporate  powers  cease.  The  due  in- 
corporation of  any  company,  claiming  in  good  faith  to  be  a 
corporation  under  this  part,  and  doing  business  as  such,  or  its 

1  Waterville  Mfg.  Co.  v.  Brynn,  14  *  Sun  Mut  Ina.  Oo.  v.   Dwight,   1 

Barb.  18i;  C'lniieclicut  Bank  V  Smith,  Hilt.  50. 

9  Abb.  Pr.  175;  Myers  v.  Mich  ido,  *  Union  Bmk  v.   Dewpy,  1  Sandf. 

14  How.  Pr.  149;    Loaners'    Bank  v.  509.     For  form  or' averment,  see  New 

Jac.ibv,  10  Hun.  143.  York  Floati  lij    Derrick  Co.   v.   New 

*  Reformed  Dnioh   Church  v.  Vee-  Jersi-y  Oil  Co.,  3  Duer,  64S. 

der,  4  Wend.  494;  Struver  v.    Ocean  '  National  Ins.  Co.  v.  Bowrain,  60 

Ii.s.  Co.,  9  Abb.   Pr.  23;   Perkins  v.  Mo.  252;  Farmers'   etc    Ins.    Co.    v. 

Church,  81  Barb.  84;  Marineeu-.  Bank  Needles.  52    Id.  17;     Consrri-gaiional 

V.  Jauncey,  I  Id.  48Ij.    Compare,  how-  Soc.  v.  Perry,  «  N.  H.  164;  Henriquea 

ever,  ("amden  etc.  Co.  V.  Reiner,  4  Id.  v.  Dutch    West   India    Co.,     2    Ld. 

127;   Birdv.  Chamberlain,  3  Sandf.  Raym.  1535;    People  v.   Ravenswood 

Ch.  81,  where  it  is  said  that  the  power  Turnpike  Co.,  20  Birb.  51S :  Connec- 

of  a  loreiirn  corporation   to  make  the  ticut    Bank    v.    Smith,  17  How.  Pr. 

ccntractwiiich  is  sought  to  be  enforced  487;     All  Saints' Church  v.  Lovett,  1 

must  be  set  forth.  Hall,   213;  Ryan  v.  Vanlandmyham, 

'Meyers  v.   Machado,  6  Abb.  Pr.  7  Ind.  41t);    Brookville  etc.  Turnpike 

19<<.  C<i.  v.  McCartv,  8  Id.  392;  Tar  River 

*  Culifornia  Code  Civ.  Proc,  sec.  Nav.  Co.  v.  Ned,  3  Hiwk<.  520; 
45'1;  New  York  Code.  .sec.  163;  United  Worche<ter  Mel.  Inst  v.  H>trdins:,  11 
States  Bank  y.  Hadkins,  1  Johns.  Cas.  Cush.  285;  but  see  eonfra.  Welland 
132.  Canal  Co.  v.  Hathaway,  8  Weud.  480. 


204 


FORMS  OP  COMPLAINTS. 


§  375. 


right  to  exercise  corporate  powers,  shall  not  be  inquired  into, 
coUaterall}',  in  any  private  suit  to  which  such  de  facto  corpora- 
tion may  be  a  party,  but  such  inquiry  may  be  had  at  tlie  suit  of 
the  state  on  information  of  the  attorney-general. "^  The  gen- 
eral rule  thus  reduced  to  statutory  form  in  California  has  been 
adopted  in  many  of  the  states,  and  may  be  considered  as  the 
correct  statement  of  the  law  on  this  subject.^ 

§  375.  lacorporation  Inferred  and  how  Proved. — "Wliere, 
in  an  action  brought  against  the  directors  of  a  corporation, 
facts  are  stated  in  the  complaint  which  shows  that  the  defend- 
ants beca.ue  a  body  corporate,  no  special  avermeut  to  that  effect 


1  Califlirnia  Civil  Code,  sec.  858. 

»  Oroville,  etc,  K.  R.  Co.  v.  Plumas 
County,  37  (M.  Hoo;  Drtrinebroge  Min- 
ing Co.  V.  Ailment,  'IiS  Id.  286;  Stock- 
ton etc.  Ro  id  Co.  V.  Stockton  etc.  K. 
R.  Co.,  45  Id.  GbO ;  Bakersfleld  T.  H. 
Assn.  V.  Cliesler,  55  Id.  98;  Hughes 
V.  Bank  ot  Somnrset,  5  Litt.  45; 
Searsl)urg  Turnpike  Co.  v.  Cutler,  6 
Vt.  3Ii;  T.ir  R  ver  Nav.  Co.  v.  Neal, 
8  Hawks  520;  Palmer  v.  Lawrence, 
8  Saiidf.  llil  ;  Brookville  etc.  Turn- 
pike Co.  V.  .Vl<-('arty,8  Ind.  392;  John 
V.  Farmers'  Bmk,  2  Blackf  307; 
Trumbull  MuU  F.  [ns.  Co.  v.  Horier, 
17  Ohio,  407;  Rice  v.  Rock  Island  etc 
R  R.  Co..  21  111.  95 ;  Tarbell  v.  P  i-re, 
24  111.  4(i.  In  Oroville  etc.  R.  R.  v. 
Plumas  County,  supra,  in  construing 
the  se<tion  of  the  California  code 
abovft  cited,  the  court  said:  "This 
provision  does  not  go  to  the  extent  of 
precluding  a  private  person  from 
denyiiiff  the  existence  de  jure  or  de 
facto  of  an  alleged  corporation.  It 
can  not  be  true  that  the  mere  allega- 
tion thata  party  is  a  crporation  puts 
the  questi(ni  whether  it  is  such  ai'or- 
poration  beyond  the  reach  of  inquiry 
in  a  suit  with  a  private  person.  It 
must  be  a  corporation  either  de  jure 
or  defaeto,  or  it  has  no  legal  capacity 
to  sue  or  be  smd,  nor  any  capacity  of 
any  kind.  It  is  an  indispensable  al- 
legation in  an  action  brought  by  a 
corporation,  that  the  plaintift  is  a 
corporiition ;  and  it  results  from  the 
logic  of  pleading   that    the    opposite 

farty  may  deny  the  nllegalion.  *  *  * 
t  is  not  contemplated  that  the  alle- 
gation thit  the  company  was  duly 
orgnnizid  should  put  the  fact  beyoncl 
dispute  aid  dispen-e  with  all  evi- 
dence. The  statute  furnishes  a  rule 
of  evidence.  It  is  declared  that  the 
due  incorporatioa  of    any    company 


shall  not  be  inquired  into  collaterally 
in  any  private  suit,  etc.,  in  a  certain 
case;  that  is,  when  the  company 
claims  in  good  faith  to  be  a  corpora- 
tion under  the  laws  of  the  slate,  and 
is  doing  business  as  such  corpontion. 
The  alleged  corporation  must  claim  in 
good  faith  that  it  is  such  a  corpora- 
tion; and  then  its  due  inct)rporalion 
can  not  be  inquired  into  c  lUaterally. 
To  say  that  the  'due  incorporation' 
can  not  be  inquired  into  collaterally, 
does  not  mean  that  no  inquiry  can  be 
made  as  to  whether  it  is  a  corporation. 
Many  of  the  acts  required  to  be  per- 
formed in  order  to  inHke  a  complete 
organization  of  the  corporitiun  may 
have  been  irregularly  performed,  or 
some  of  them  may  have  been  entirely 
omitted,  and  the  rule  of  the  statute 
is,  that  such  irregular  or  defectiv<> 
performance  shall  not  defeat  the  in 
corporation  when  drawn  in  question 
collaterally.  The  omi-sion  of  the 
names  and  number  of  the  first  trustees 
from  the  articles  of  association,  the 
failure  to  tile  a  duplicate  of  the  arti- 
cles of  association  wiih  the  secretary 
of  state,  an  incorrect  slatenient  of  the 
length  of  the  road,  and  omission  of 
the  statement  of  the  principal  place 
of  business,  and  many  olh'-r  irreg- 
ularities of  the  kind  inentioned  in 
Siiring  Valley  Water  Works  v.  San 
Francisco,  22  Cal.  410,  the  insuffi- 
cient acknowledgment  of  the  articles 
of  incorporation  (Dannebrocp  Mining 
Company  v.  Ailment,  26  Id. 28'>),  are 
irregul:iritie8  that  will  not  defeat  the 
corporation  when  its  orgMiiization  is 
collaterally  called  in  question.  A 
substantial  compliance  with  the  re- 
quirements of  the  sialute  will  be  sufD- 
cient  to  show  a  corporation  de  jure  in 
an  action  between  the  corporation  Hud 
a  private  person," 


§  376.  CORPORATIONS.  205' 

is  neco8sary.  The  fact  of  incorporation  is,  then,  an  inference 
of  law.^  I'roof  of  the  fact  of  corporation  may  be  made  by 
evidence  of  the  charter  or  general  act,  or  by  organizutiou  and 
user.2 

§  376.  C  ontracts  Made  for,  but  not  in  Nam9  of  Corpo- 
ration, ho'w  Alleged. — A  corpora! ion  is  recognized  in  law  by  its 
corporate  nime,  and  must  sue  and  be  sued  by  such  name,  under 
which  it  transacts  its  business. ^  The  directors  of  a  corporation 
are  its  chosen  representatives,  and  constitute  the  corporation  for 
all  purpos'>s  of  dealing  with  others.  What  they  do  as  the 
represeiitaiives  of  the  corporation,  the  corporation  itself  is 
deemed  to  do;  and  the  manifested  motives  and  intentions  of 
such  directors,  when  a  material  fact  is  in  issue,  are  to  be  im- 
puted to  tiie  corporation.^  As  a  corporation  can  contract  only 
through  the  instrumentality  of  its  chosen  representntives,  it  fol- 
lows that  a  corporation  is  the  proper  party  plaintiff  in  an  action 
founded  on  a  contract  made  for  its  benefit,  and  the  misnomer 
of  a  coi-poration  in  a  grant,  obli'^ation,  or  other  written  contract 
does  not  prevent  a  recovery  thereon  by  or  against  the  corpora- 
tion in  its  true  name,  provided  its  identity  is  siifflcienily  averred 
and  proved.^  Thus  a  contract  not  under  seal,  signed  by  the 
agents  of  a  corporation,  and  showing  upon  its  face  that  the 
agents  intended  to  contract  for  the  corporation,  and  not  for 
themselves,  may  be  declared  upon  as  the  contract  of  the  corpora- 
tion;^ and  where  a  deed  is  made  to  a  corporation,  by  a  name 
varying  from  its  true  name,  it  may  sue  in  its  true  name,  and 
aver  that  the  defendants  made  the  deed  to  them  by  the  name 
mentioned  in  the  deed;  and  an  allegation  that  the  defendants 
acknowledged  themselves  to  be  bound  unto  the  plaintiffs  by  the 
description  of,  etc.,  is  equivalent  to  such  an  averment.'  So, 
also,  an  obligation  given  to  the  corporation,  which  is,  in  terms, 
payable  to  its  agents  or  directors,  is  properly  described  in  de- 
claring on  it,  as  given  to  the  corporation,  by  the  name  and  de- 
scription of  the  directors,  etc.^    In  California,  in  an  action  on  a 

*  Falconer  ▼.  Campbell,  2  McLean,  Mass.  444 ;  Medwav  Cotton  Manuf, 
195.  Co.   V.   Adams,  10 'Mass.  3'iO;  Com- 

*  Wiiterville  Manf.  Co.  v.  Brvan,  14  mercial  B'k  v.  French,  21  Pick.  48  i; 
Bar').  182;  Stoddnrd  v.  Onondaga  Lowell  v.  Morse,  1  Met.  473;  Chari- 
Ariiiurtl  Conference,  12  Id.  573.  table  A.S8ociation  v.  Baldwin,  1  Met. 

3  Curtiss    V.   Murry,  26    Cal.    633 ;  859. 

Fii?  c.  Randlett,  35  Id.  318;  Buiidy  *  Many   v.    Beckman   Iron    Co.,   9 

V.  Birdsall,  29  Barb.  31.  Pai^e  Ch.  188, 

*  Mavnard  v.  Fireman's  Fund  Ins.  '  N.  Y.  African  Society  v.  Varick, 
Co.,  34  Cal.  48.  13  Johns.  88. 

*  Melledge  v.  Boston  Iron  Co.,  5  *  Bavley  v.  Onondaga  Ins.  Co.,  6 
Cush.  168,    176;  Minot   v,  Curtis,  7  Hill.  476. 


206  FORMS  OF  COMPLAINTS.  §  377. 

note  executed  by  the  defendant,  payable  to  the  "board  of  trus- 
tees of  the  Sonoma  Academy,  or  their  successors  in  office,"  and 
which  specified  that  "  no  change  in  the  name,  character,  or 
management  of  the  said  academy"  should  affect  the  liability  of 
the  payor,  the  complaint  of  the  "Cumberland  College"  was 
held  sufficient,  which  stated  that  the  plaintiff  was  a  corporation, 
and  the  same  institution  of  learning  formerly  known  as  the 
"Sonoma  Academy,"  that  the  academy  was,  after  its  establish- 
ment, changed  to  "Cumberland  College,"  and  that  the  note 
was  the  property  of  the  plaintiff.^  Upon  the  same  principle,  in 
an  assumpsit  against  a  bank,  an  averment  that  the  defendant 
"promised  through  its  president  and  cashier,"  without  alleging 
their  authority,  is  sufficient,  as  the  bank  could  not  have  prom- 
ised except  through  its  agents  duly  authorized.^  At  the  com- 
mon law,  the  officers  of  a  corporation  are  not  liable  personally 
on  a  promissory  note  of  the  corporation, ^  and  are  not  proper 
parties  defendant  to  an  action  on  a  mere  money  demand  against 
the  corporation,  except  wliere  statutes  authorize  suits  against 
them.'*  In  certain  actions  of  an  equitable  character,  where  the 
members  of  a  corporation  are  authorized  to  bring  an  action  on 
behalf  of  the  corporation,  the  complaint  must  allege  that  the 
officers  whose  duty  it  is  to  sue  have  been  requested  to  institute 
proceedings  for  that  purpose,  and  have  refused  to  do  so.* 
Where  an  obligation  is  executed  to  two  corporations  jointly, 
they  may  sue  thereon  jointly.* 

§  377.  Actions  by  Individual  Banker. — ^In  New  York,  an 
individual  banker  commencing  and  carrying  on  business  under 
the  general  bankiuT;  act  of  that  state,  and  the  acts  amending  the 
same,  is  a  corporation  sole ;  and  as  such  he  may  assume  a  cor- 
porate name,  as  well  as  may  an  association  of  several  persons.  An 
action  by  such  banker  upon  a  cause  of  action  accruing  to  him 
as  such,  is  properly  brought  in  the  corporate  name.' 

§  378.  Corporation's  Liability  fox  Libel,  Slander,  and 
Malicious  Prosecution. — In  California  it  is  held  that  a  cor- 
poration has  the  power  to  compose  and  publish  a  libel,  and  by 
reason  thereof,  when  done,  becomes  liable  to  an  action  for  dam- 
ages by  the  person  of  and  concerning  whom  the  words  are   com- 

*  Cumberland  College  v.  Ish,  22  Cal.  Pr.  361 ;  House  v.  Cooper,  16  How. 
641.  Pr.  292;   8  Pomeroy's  Eq.    Jur.,   sec 

«  Bank  of  Metropolis  v.  Guttschlick,  1095. 

14  P"t.  19.  «  Gath Wright  v.  Calloway  Co.,  10 

»  HhI!  v.  Crandall,  29  Cal.  567.  Mo.  663. 

*  Brahe  v.  Pyihagoras  Association,  '  Bank  of  Havana  r.  Wickhain,  7 
4  Duer,  658.  Abh.  Pr.  134;  Hallettv.  Harrower,  83 

*  Vauderbilt  T.    Qarrison,   8  Abb.  Barb.  6J7 


§  382.  CORPORATIONS.  207 

pose  1  and  published.*  And  on  the  same  principle,  in  an  action 
for  a  libel  published  by  a  corporation,  acting  through  its  direc- 
tors in  the  discharge  of  their  office,  the  malice  of  the  directors 
is  the  malice  of  the  corporation.^  Conversely  a  corporation  may 
maintain  an  action  for  libel  on  it  as  such,  for  words  affecting  its 
business  or  property,  if  special  damages  be  alleged  and  proved. ^ 
In  Missouri,  however,  it  has  been  held,  that  an  action  for  mali- 
cious prosecution,  slander,  false  imprisonment,  or  assault  and  bat" 
tery,  can  not  be  maintained  against  a  corporation  aggregate,  but 
must   be  brought  against  tlie  in  Uviduals  iai;)licit3d  personally.'* 

§  379.  Corporate  Existence  when  Commences — ^Undei 
the  general  laws,  and  by  statute,  the  word  "•person,"  in  its 
legal  signification,  is  intended  to  include  artificial  as  well  as 
natural  parsons.^  Under  the  laws  of  California,  corp>ration3 
have  a  legal  existence  from  the  date  of  filing  the  certificate  of 
incorporation  in  the  office  of  the  county  clerk. ^ 

§  3S0.  ViriSLcationb/  a  Corporatloa.  —  Whon  a  corpora- 
tion is  a  party,  the  verification  of  the  pleading  may  be  made  by 
any  officer  thereof ;'  an  I  in  soma  states  by  an  agent  or  attorney 
thereof.8  And  this  inclu  les  municipal  as  well  as  private  cor- 
porations.^ 

§  381.  Allegation  of  R33ia3!XC3.  —  In  Naw  York,  in  an  ac- 
tion against  a  foreign  corporation  brought  in  the  supreme  court 
of  the  city  New  York,  where  the  complaint  states  a  cause  of 
action  of  which  the  court  has  jurisdiction,  it  is  unnecessary  to 
aver  that  the  plaintiff  resides  within  the  city  of  New  York  ;^"  or 
that  the  defendants  transact  their  business  or  keep  an  office 
within  the  city.^ 

§  3S2.  A  jainst  Corporation  Formed  under  the  Act  in 
Relation  to  Roads  and  Highways. 

Form  No.  77. 

[TlTLI.] 

The  plaintiff  complains,  and  alleges: 

*  Maynard  v.  F.  P.  Ins.  Co.,  34  Cal.  ^  California  Cod«  of  Pmc,  Sfto.  446; 
4^«  N.  Y.  Code,  see.  157;  Ariz.   Code  of 

*  .Maynard  v.  Fireman's  Fund  Ins.  Proc.,  sec.  56;  Idaho,  sec  6o;  ante. 
Co..  34  Cal.  48;  Philadelphia  etc.  R.  R.  »  Oregon  Code,  sec!  848;  Or.  Decis. 
Co.  V.  Quitcley,  21  Ht.w.  (U.  S.)  204.  79. 

»  Sh(ie   &  Leather  Bank  v.  Thomp-  »  Hiion  ▼.  Georsre,  18  Kans  25.3. 

•on,  18  Abb.  Pr.  413.  **  Spencer  v.   Roirers     Loinmotive 

*  Cliilds  v.  Bank  of  Missouri,  17  Works,  17  Abb.  Pr,  110;  S.  C,  8 
Jr!o  -213.  Bosw.  612. 

»  DuURlas  V.  P.  M,  S.  S.  Co.,  4  Cal.  "  Corn  Exchange  Bnnk  v.  Wrstern 

8(4;  ChI.  Code  of  Proc,  sec.  17.  Transportation  Co..  16  Abb  Pr.  319, 

*Mokflumne    Hill     Min.    Co.     v.  note;  Koenie   v.  N  tt,    2   HilU  323; 

Woodbury,   14  CaL    424;  Cal.  Civil  S.  C,  8  Abb.  Pr.  8d4. 
Code,  see  296. 


208  FORMS  OF  COMPLAINTS.  §  383. 

I.  That  the  defendant  is  a  corporation  created  by  and  under 
the  laws  of  this  state,  organized  pursuant  to  an  act  of  the  leg- 
islature entitled  [title  of  action  in  full] ,  passed ,  18..., 

and  the  acts  amendatory  thereof  and  supplementary  thereto. 

II.  [State  a  cause  of  action].^ 

[Demand  of  Judgment.] 

§  383.     Liability  of  Directors  of  Turnpike  Company. — 

In  California,  the  directors  of  a  corporation  formed  for  the  con- 
struction of  plank  or  turnpike  roads  are  not  personally  liable 
under  the  act  creating  suc'i  corporations,  on  a  contract  made  by 
them,  which,  by  its  terms,  bin  is  the  corporation,  unless  the 
stockholders  have  adopted  by-laws,  and  the  same  have  been 
filed  in  the  recorder's  office,  and  the  contract  is  made  in  viola- 
tion of  the  by-laws.'^ 
§  384.    By  Corporation  on  Stock  Assessments. 

Form  No.  78. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  in  pursuance  of  an  act  of  the  legislature  of  the  state 
of   California,  entitled  "an  act"   [give   the  title  of  the   act], 

passed  ,  18...,  and  of  the  acts  amendatory  thereof  and 

supplementary  thereto,  the  above-named  company  was  organ- 
ized  and  formed    into  a    corporation    under  the    name  of    the 

Company,  and  ever  since  its  said  organization  has  had 

its  principal  office  and  place  of  business  at  the  city  of  

II.  That  on  the  day  of  ,  18..,  at  , 

defendant  and  certain  other  persons,  being  desirous  of  associating 
themselves  together  for  the  purpose  of  constructing  a  toll  road 
[or  state  the  actual  purpose]  from  the  village  of  R.  to  the  vil- 
lage of  S.  in  said  county,  in  consideration  thereof  and  of  the 
mutual  promises  each  to  the  other  and  of  the  benefits  to  be 
derived  from  being  members  of  said  association,  made  and  sub- 
scribed a  certain  agreement  in  writing,  as  follows,  to  wit: 

(Copy  subscription  paper,  with  subscribers'  names,  and  add]: 
and  other  persons  whose  names  are  here  omitted. 

III.  That  the  said  defendant  did,  at  the  time  of  subscribing 
said  agreement,  set  opposite  to  his  name  thereto  subscribed  the 
number  of  ten  shares,  and  that  the  par  value  of  each  share  is 
fifty  dollars,  and  that  said  defendant  agreed  to  take  and  pay 
for  the  same. 

*The  sufficiency  of  this  form  haa      390;  N.  Y.  Floating  Derrick  Co.  V. 
been  uphc-ld  in  Uswp^o  and  Syracuse     K.  .J.  Oil  Co.,  3  Duer,  648. 
riunk  iioAd  Co.  V.  Kust,  5  How.  Pr.         «  Hall  v.  Crandall,  29  Cal.  668. 


§  385.  CORPORATIONS.  209 

IV.  That  afterwards,  to  wit,  on  the day  of , 

18...,  at  a  regiihir  meeting  of  the  trustees  of  said  company,  an 
assessment  of  five  per  cent  of  the  par  value  of  each  share  of 
the  capital  stock  of  the  said  corporation  was  duly  levied ;  that 
at  the  time  of  the  levy  of  such  assessment,  defendant  was  a 
subscriber  to  the  capital  stock  of  said  corporation  in  the  amount, 

of   shares,  of  the   par  value   of dollars,  and 

was  the  owner  of  such  stock. 

V.  That  afterwards,  etc.  [Allege  the  number  of  assessment* 
defendant  has  failed  to  pay,  each  as  above.] 

VI.  That  the  defendant  had  due  notice  of  each  of  the  said 
assessments,  made  by  the  trustees  of  said  company  as  afore- 
said,   and    that    the    same   were    duly  published   in   the   daily 

,  a   newspaper  printed   and    published  in  the   city  of 

,  for  at  least days,  and  in  every  respect  according 

to  law. 

VII.  That  the  whole  sum   of  dollars  is  now  due 

plaintiff  from  defendant  thereon,  and  no  part  thereof  has  been 
paid. 

[Demand  of  Jitdgmknt.] 
§  385.  Stockholder's  Liability  for  Assessments,  how 
Enforced. — The  liability  of  a  stockholder  for  a  valid  assess- 
ment may  be  enforced  by  an  action  at  law,  upon  his  promise, 
express  or  implied,  to  pay  the  same,  although  the  corporation 
is  authorized  to  sell  the  delinquent  shares  of  its  stockiiolders 
for  non-payment  of  assessments.  The  remedy  of  sale  given  to 
the  corj)oiation,  under  such  circumstances,  is  merely  ouraula-^ 
tive,  and  may  be  waived  by  the  corporation. ^  In  some  of  the 
states,  however,  the  remedy,  in  the  first  instance,  is  by  a  sale  of 
the   stock.     It  is   so   held   in  Massachusetts,^   in  New   Hamp- 

»  Snlem  &  Tenn.  E.  R.  Co.  v.  Tip-  Rockville    etc.    Rofld  v.    MHxwell,  2 

ton,   5  AIh.  787;  S.  C,  39  Am.   Dee.  Cranch  C.  C.  451;  Del.  etc.  (Janal  Co. 

841 ;  Worcester  Tump.  Co.  v.Willard,  v.   Sansom,    1    Binn.  70;    Ivirksoy  v. 

6  Mass.  80;  S.  C,  4  Am.  Dec.  39:  In-  Florida  etc.  Road  Co.,  7  Fla.  23;"  In- 

Btone  V,  Franktort  Bridge  Co.,  2  Bibb,  glis  v.  Great  N.  R'y  Co.,  1  Mi.cq    112; 

676;  S.  C,  5  Am.  Dec.  6.S8;  Taunton  South   Bay  etc.  Co.  v.  Grav,  oO  Me. 

Turnp.  Co.  V.  Whiting,  10  Mass.  327;  547;   Mann  v.  Cooke,  20   Conn.  178; 

{?.  C,  6   Am.  Dec.    124;   Gahan  etc.  Raymond  v.  Caton,  24  III.  123;  City 

Turnp.  Road  V.  Hurtin,  9  Johns.  217;  Hotel    v.    Dickinson,    6    Grnv,    586. 

8.  f'.,  6  Am.  Dec.  273;   Conn.  et<-.  R.  That  the  justices'  courts  in  Ci'iiforaia 

K.   Co.  V.   Baile}',  24  Vt.   465;  Troy  have  jurisdiction  over  actions  to  col- 

etc.    R.  R.  Co.  V.  Ker,   17   Barb.  581;  lect  unpaid  assessments,  the  liahility 

i^orthcrn   R.  R.  Co.  v.  Miller,  10  Id.  therefore  being  founded  on  contract^ 

260;  East  Plank  R.  Co.  v,  Vaughan,  see  Alpers  v.  Superior  Court,  3   West 

20  Id.    155;    Spear  v.  Crawford,   14  Coast  Rep. — . 

"Wend.  20;  Trov  etc.  R.  R.  Co.  v.  'Boston  etc.  R  R.  Co.  v.  Welling- 
McChesnev,  21  id.  296;  Dayton  v.  ton,  113  Mass.  79;  City  Hotel  v.  Dick- 
Borst.  31  iS^.  Y.  435;  Carlisle  v.  Ca-  inson,  6  Grav,  .586;  New  Bediord  etft 
huwba   etc.    B.  R.  Co..  4   Ala.  70;  Co.  t.  Adums.  8  Maas.  I3S. 


210  FORMS  OF  COMPLAINTS.  §  386. 

shire,*  and  in  Maine.*  In  California  it  has  been  decided  in  a  re- 
cent case,  that  the  stockholders  of  mining  corporations  organized 
under  the  laws  of  California  incur  no  liability  ex  contractu^ 
either  express  or  implied,  to  pay  in,  either  for  the  prosecution 
of  the  enterprise  or  the  payments  of  the  debts  of  the  company, 
the  nominal  par  value  of  their  shares ;  that  unless  stockholders 
of  a  corporation  have  subscribed  for  stock,  or  are  the  successors 
of  subscribers,  assessments  levied  on  their  stock  can  be  en- 
forced only  by  the  sale  of  their  shares,  and  that  the  provisions 
of  the  code,  defining  the  personal  liability  of  stockholders,  only 
apply  where,  from  the  terms  of  the  stockholder's  subscription, 
•such  liability  was  incurred. ^  In  such  state  also,  it  has  been  re- 
cently held  that  corporations  organized  and  existing  under  the 
provisions  of  the  code  have  authority  to  levy  and  collect  assess- 
ments on  stock  for  which  the  subscription  price  has  been  fully 
paid.* 

§  886.  Averment  of  Assessments,  how  Made. — In  an 
action  to  collect  an  assessment,  the  complaint  must  aver  a 
proper  assessment,  and  state  how  it  was  ordered,  so  as  to  make 
it  conform  to  the  charter  and  by-laws,  or  general  act  under 
which  the  corporation  was  organized.'  In  Pennsylvania,  an 
averment  that  the  assessment  was  duly  made  is  a  sufficient  alle- 
gation to  show  that  they  conformed  to  the  statute.^  In  Ohio 
however,  where  the  statute  provided  for  a  thirty-days  notice  of 
the  time  and  place,  an  averment  that  the  defendant  was  called 
upon  and  duly  notified  by  publication  was  held  insnfScient,  as 
being  too  general.''  And  in  this  latter  state,  in  proceeding  under 
the  I  rovisions  of  the  revised  statutes,  an  allegation  is  necessary 
that  the  directors  required  subscriptions  to  be  paid  in  install- 
ments of  a  certain  amount  at  a  certain  tirae.^  Where  a  corpora- 
tion becomes  insolvent,  and  ceases  to  act  under  its  charter,  so 
that  the  prescribed  mode  of  making  assessments  cnn  not  be 
complied  with,  the  debt  will  be  considered  as  due  without  fur- 
ther demand.^    But  in  an  action  brought  by  the  receiver  of  an 

IN.  H.  Cpnt  R.R  Co.  v.  Johnson,  Ind.  484;    Atlnntic  etc.  Ins.  Co.  T. 

80  N.  II.  390;   PiscaUqua  Ferry  Co. v.  Young,  38  N.  H.  4-')l. 

Jones,  39  Id.  491 ;  White  Mts.  R.  R.  «  Havington  v.  Pittsburgh  etc.  K. 

Co.  V.  Enstman,  84  Id.  124.  R.,  34  Pa.  St.  358. 

«  Ktrinebec  etc.  R.  R.  Co.  v.  Ken-  ^  Penn.  &  O.  Canal  Co.  v.  Webb,  9 

dall,  31  Me.  470;    Kennebec  etc.  R.R.  Ohio,  IS') 

Co.  V.  Jarvis  34  Id.  360.  »  M.  C   &  U  M.  R.  R.  v.  HhU,  26 

•In  re  South  Mt.  Con.  M.  Co.,  7  OhioSi. «10;  Devendorfv.  Beardsley, 

Saw.  30.  23  Barb.  656 ;  Williams  v.  Babcock,  SO 

«  Santa  Cruz  R.  R  Co.  V.  Spreckels,  Id.  109;  Hurlbut  v.  Root,    12    How. 

a  We^t  Coast  lien.  752,  833.  Pr.  511 ;  WiiM-ntis  v.  Lnkev,  15  [d.206. 

•Gibburt  v.   Junction   R.   E.,    12  "  Henr^  v.V.  i&  A.I{.R.,17  0hiyI87. 


§  388.  CORPORATIONS.  211 

insolvent  corporation,  to  recover  on  a  stock  subscription,  which 
provided  that  after  twenty  per  cent  had  been  paid,  the  balance 
should  be  subject  to  the  call  of  the  directors,  as  they  may  be 
instructed  by  a  majority  of  the  stockholders,  the  complaint 
must  show,  by  alleging  losses  or  otherwise,  the  necessity  for  an 
assess  nent,  and  a  call  made  on  the  stockholders.^ 
§  337.    By  a  Corporation,  on  a  Stock  Subscription. 

Fonn  No  79. 

[TiTLB.] 

The  plaintiff  complains  and  alleges  : 

I.  [Aver  incorporation,  as  in  No.  78.] 

II.  That  in  contemplation  of  the  incorporation  of  these 
plaintiffs,  and  for  the  purpose  of  constructing,  owning,  and 
maintaining  the  [toll  road],  then  contemplated,  the  defendant, 

witli  others,  on  the day  of  ,  18...,  at ,  became 

a  subscriber  t)  the  stock  of  the  said  company  by  [severally] 
signing  and  delivering  an  agreement  in  writing,  of  which  the 
following  is  a  copy:   [Copy  subscription  paper.] 

III.  That,  among  other  persons,  the  defendant  signed  and 
executed   said    agreement,  and   set   opposite    to    his  name   the 

sum  of  dollars,  which  he  thereby  agreed  to  pay  to  said 

company. 

IV.  That  after  the  defendant  had  thus  subscribed,  and  on  or 
about  the day  of ,  18....,  he  subscribed  to  the  arti- 
cles of  association  of  said  company  his   name   and  his  place  of 

residence,  to  wit,  ,  and  the  number  of  shares  of   stock 

taken  by  him,  to  wit,  shares,  amounting  to 

dollars,  the  shares  of  stock  being dollars  each. 

V.  That  the  plaintiff,  by  its  directors,  on  the day  of 

,  18....,  at ,  tendered  to  the  defendant  the 

shares  of  stock,    so  subscribed  for  by  him,  and   demanded  the 

defendant  to  pay  thereon  the  sum  of ,  agreeably  to  said 

subscription  and  the  charter  and  by-laws  of  the  company. 

VI.  That  the  plaintiff  has  performed  all  the  conditions 
thereof  on  its  part. 

VII.  That  the  defendant  has  not  paid  the  said  subscription, 

or  any  part  thereof. 

[DKSf  AND  ov  Judgment.] 

§  388.  Averments  in  Actions  on  Stock  Subscription. — 

A  complaint  on  a  sub^jcription  to  be  paid  as  assessed  must  aver 
a  proper  assessment.^    Where  the  general  law  or  charter  under 

*  Chandler  v.  Keith,  42  Iowr,  99.         under  the  statutes  of  New  York,  see 

•  Gebhart  v.  Junction  R.  R.  Co.,  12  Pouglikeepsie  Plank  Koad  Uo.  v.Grif- 
Ind.  484.    Fur  a  form  of  cunipluint     fin,  21  Barb.  454;   OdwegotibiSjr.li'lk. 


212  FORMS  OF  COMPLAINT.S.  S  389. 

which  the  corporation  was  organized  requires  the  whole  or  a 
certuin  part  of  the  stock  to  be  snl)scril>ed  before  the  corportition 
can  act,  a  complaint  to  collect  an  individual  subscription  must 
allege  that  such  conditions  have  been  complied  with.^  If  there 
has  been  a  different  agreement  between  the  subscribers,  this  rule 
does  not  apply. ^  In  Ohio  it  has  been  held  sufficient  to  aver  the 
due  elect! on  of  directors,  as  that  implies  that  the  requisite  amount 
of  stock  has  been  subscribed.^  Where  the  subscription  was  con- 
ditional, an  allegation  of  the  performance  of  the  condition  is  essen- 
tial. Under  the  code,  it  would  seem  that  an  allegation  that  the 
plaintiff  had  performed  all  the  conditions  on  his  part,  is  sufficient.'* 
If  the  action  is  to  recover  the  entire  amount  of  the  subscription, 
the  complaint  should  allege  a  tender  of  the  stock,  or  a  readiness 
and  willingness  on  the  part  of  the  corporation  to  deliver  it  to  the 
defendant,  where  such  acts  are  not  conditions  precedent.*  In 
conformity  with  the  practice  of  some  of  the  states,  the  complaint 
must  contain  a  copy  of  the  subscription  paper.^  The  comt)any 
may  assign  its  r  ght  to  recover  subscriptions,^  but  in  such  case 
the  complaint,  in  an  action  by  the  assignee,  must  aver  the  assign- 
ment.8 

§  389.  Separate  Subscriptions. — ^Where  a  defendant  snb- 
Bcribed  in  his  own  name  for  fifty  shares  of  railroad  stock,  and 
at  the  same  time  subscribed  for  fifty  more,  signing  his  own 
name  again,  adding  thereto  the  letters  "Exr.,"  to  indicate  that 
he  took  the  additional  fifty  shares  for  an  estate  for  which  he 
was  executor,  it  was  held  that  these  were  separate  contracts, 
upon  which  separate  actions  would  lie,  and  that  the  pendency 
of  an  action  to  enforce  payment  of  the  first  subscription  formed 
no  sufficient  ground  for  abating  the  action  to  enforce  the  sec- 
ond subscription.^     And  where  one  guarantees  the  payment  of 

Rd.    Co.  V    Rust,  5  How,    Pr.  890;  Gal.  Code  of  Proc,  sec  467;  Ohio  R. 

Dutchpss   Cotton  Mfg.    Co.  v.  Davis,  S.,  sec.  6091. 

14  Johns.    288;   First  Bnptiat  Soc.  T.  «  St.  Paul  etc.  R'y  Co.  v.  Robbins, 

Rapelee,  16  Wend.  605;  Buffnlo  etc.  23  Minn.  439;  James  v.  C.  H.  &  I).  R. 

R.  R.  Co.  V.  Cwy,  26  N.  Y.  75;  Wei-  R.,  2  Disney,  261 ;    Minneapolis  Har- 

land  Canal  Co.  v.  Hathawav,  8  Wend,  vaster  Works  v.  Libbv,  24  Minn.  327. 

480;  S.  C,  24  Am.  Dec.  51,  note  58;  •  Hudson  v.  Plank  Road  Co  ,  4  Q. 

1  Jewett  V.   Railway,   34  Ohio  St.  Greene,  152 ;  Stockton  v.  Crcat;:<>r,  51 

601 ;  Topekti  Bridge  Co.  v.  Cummings,  Ind.  262 ;  but  see  Van  Riper  v.  Ameri- 

8  Kan.  65;  Fry  v.  Lexington  etc.  R.  can  Cent.  Ins.  Co.,  60  Id.  123 

B.,  2    Met.  (Kv.)    314;    Livesey    y.  '  Downie  v.  Hoover,  12  Wis.  174; 

Omnha  Hotel,  5  Neb.  60  James  v.  C.  H.  &  D.  R.  R.,  2  Dinspy, 

*  Emmitt  V.  Railroad  Co.,  81  Ohio  261  ;  Trott  v.  Sarchett,  10  Ohio   St. 

St.  23;  Lail  v.  Mt.  Sterling  Coal  Co.,  241 ;  M.  &  C.  R.  R.  v.  Elliott,  Id.  57. 

18  Bush,  32.  *  Minneapolis  Harvester  Works  V. 

5A.shtabula  etc.  R.  R.  v.  Smith,  15  Libby,  24  Minn.  827. 

Ohio  St.  328.  »  Erie  &  N.  Y.  City  R.  R.  Co.  Y. 

*  Trott  V.  Sarchett,  10  Ohio  SL  241 ;  Patrick,  2  Keyes,  256. 


§  392.  CORPORATIONS.  213 

a  subscription,  the  subscriber  and  the  guarantor  may  be  sued 
in  the  same  action.*  A  release  of  the  guarantor,  however,  will 
not  discharge  the  subscriber,  as  their  liabilities  are  several.^ 

§  390.  Actions  by  Religious  Corporations. — Religious 
corporations  may  sue  for  subscription. ^  Trustees  of  such  cor- 
porations must  first  establish  their  right,  before  they  can  use 
the  corporate  narae.^  Before  the  court  can  take  notice  of  the 
regulations  of  particular  religions  denominations,  or  their  na- 
ture or  effect,  their  existence  should  be  properly  averred  and 
proved  as  matter  of  fart.' 

§  391.  On  a  Subscription  to  the  Expense  of  a  Public 
Object. 

Form  No.  80. 

[TiTLB.] 

The  plaintiff  complains  and  alleges;     ^ 

I.  [Aver  incorporation.] 

II.  That    the    plaintiff,    in    the   month   of ,    18..,   was 

erecting   a    building    at ,    for    the    purposes    of      public 

worship. 

III.  That  the  defendants  and  others  requested  the  plaintiff 
to  complete  the  same,  and  for  the  purpose  of  enabling  the 
plaintiff  to   do  so,   they  subscribed  and  agreed  to  pay  to  the 

plaintiff  the   sum   of    dollars,  in   consideration    of    the 

premises,  and  of  the  like  subscription  and  agreement  of  other 
persons. 

IV.  That  upon  the  faith  of  said  subscription  the  plaintiff 
proceeded  with  the  erection  of  the  building,  and  expended 
thereon  large  sums  of  money,  and  incurred  large  liabilities, 
iand  completed  said  building,  and  otherwise  duly  performed  all 
the  conditions  on  its  part. 

V.  That  the  defendant  has  not  paid  said  subscription,  or  any 
part  thereof  [except,  etc.] 

[Demand  of  Judgment.] • 

§  302.  Consideration  for  Subscription. — ^The  general  rule 
is  settled  by  a  weight  of  authority,  although  there  are  many  cases 

1  NpH  v.  Trustees,  81  Ohio  St.  15.    donations   for  an   enterprise  not  im- 

•  Deming    v.  Trustee,  81   Ohio  St.    nit'diMi<ly  connected  with  the  church 

corpuralion,    see    Rector,  etc.,  of  the 
'  Diinsville  Serainarv  v.  Welch,  88    Church    of    the   Redeemer  v    Craw- 
BarO.  2-'l.  '  fori.  5  Ruh.  100. 

*  \(irih  Biiptist  Church  v.  Parker,  *  The  sutfiiiencv  of  this  form  is 
86  B  rb.  171.  su-stiined    in     Richmondville     Union 

'  Young*   V.  Ransom,  81  Barb.  49.  Si-in.     v.    Brownoll.    87     B>irb.    635; 

As  to  wiiat   parties  can  maintain  an  Wayro     etc.    Institute    v.  Smith,  36 

action  ai^Jiiiist  a  defendant,  treasurer  Id    670;  Ohio  We^leya.i  Femnle  Col- 

of  a  reliijii'us  corporation,  for  money  lege   v.  Uitjgins,  Ex'r   etc,  Itt    Ohio 

received  by  liiiu  as  subscriptioua  aiiil  Sl  20. 


214  FORMS  OF  COMPLAINTS.  §  393. 

which  seems  to  hold  the  contrary  doctrine,  that  merely  signing 
a  8ub8(;ription  paper  which  has  been  signed  by  others,  for  the 
purp  se  of  raising  funds  for  the  accomplishment  of  a  public  ob- 
ject, is  not  sufficient  to  render  a  subscriber  liable.  The  reason 
of  this  rule  is  the  want  of  consideration  for  the  promise.  If, 
however,  the  subscription  paper  contains  a  request  to  those 
who  represent  the  object  for  which  the  subscription  is  made  to 
do  an  act,  or  incur  any  expense,  or  submit  to  any  inconve- 
nience, and  on  the  strength  thereof  such  act  is  done,  and  ex- 
pense or  inconvenience  incurred,  this  request  and  performance 
have  uniformly  been  held  to  be  a  sufficient  consideration  to 
support  the  promise  made  in  the  subscription  paper.^ 

§  3i^3.  Actions  to  Recover  Subscriptions,  by  Whom 
should  be  Brought.— An  action  for  money  due  a  church  on 
a  verbal  contract  with  the  trustees  should  be  brought  in  the 
name  of  the  corporation,  and  not  in  the  name  of  the  trustees.^ 

§  394.    Against  a  Municipal  Corporation. 

Form  No.  81. 
[Title.] 

A.  B.,  Plaintiff,  "i 

against  > 

Thb  County  of ,  Defendant.  J 

The  plaintiff  complains  an  i  alleges: 

I.  That  the  defendant  is  a  municipal  corporation,  created  by 
the  laws  of  this  state. 

II.  [State  cause  of  action.] 

III.  That  on   the day  of  ..........77,  at  ....' ,  the 

plaintiff  presented  in  writing  the  claim  or  demand  hereinbefore 
set  forth  to  the  board  of  supervisors  of  the  county  of , 

*  Farmington  Academy  t.  Allen,  14  6RS ;  L'Amoreiix  v.  Gould,  3  Sold.  849 ; 

Mnas.  172;  S.  C,  7   Am.    Dfc. '201  ;  Foxcrot't  Academy  v.  Favor,  4  Greenl. 

Phillips'  Limerick  Academy  V.  DhvIs,  382.     In   New  Hampshire,    hi>wever, 

11  Muss.  IliJ;   S.  C.    6  Am.  Dec.  In2;  the  mutual  promises  ol'lhe subscribers 

Trustees  v.Garvey, 63  111.  401;  Bridge-  are  held  to   be  a  sulBcient  considera- 

•water  A<  adnmy   v.  Gilbert,    2    Pick,  tion :  Georiie  v.  Harris,  4   N.  H.  533; 

679    S.  C,  13  Am.  Dec.  467,  and  noie;  Socit-ty  v.  Perry,   6   Id.  1H4;  Society 

McCliire  V.  Wilson,  43  ill.  35tj ;  Phila-  v.  Goddard,  7   Id.  435;  and  the  same 

math  College  v.  Harllt  ss,  6  Or.  lo8;  doctrine  is  held  in  Culifornia:  Chris- 

Tru.<te^8  V.  Stewart,     1    N.   Y.  681;  tian  College  v.  Hendley.  49  Cal.   347. 

Howard   V.  VVillijims,    2     Pick.    80;  In  this  last  case  it  was  held  that  if 

Barnes  v.  Perine,    12  N.  Y.  18;  Trus-  subscriptions  in  aid  of   a  college  are 

tees  V.  Gurvey.  53  lil.  401  ;  McAuley  made    to   a   finance    eommittfe,    and 

V.  Billiiiger,  20  Johns  8f>:  Thompson  pass  by  operation  of  law  to  a  corpo- 

V.  Mercer  M.    Co.,   40  111.379;  Ohio  ration  afterwards  formed,    the    cora- 

Wes.  Female  College  v.  Love,  16  Ohio  plaint  in  an  action  by  the  corporation 

St.  20;    Troy  Academy  v.  Nelson,  24  to  recover  a  subscription  should  aver 

Vt.  180;  Gittings  V.  Jfavhcw,    6    Md.  that  fact. 

113;  Phipps  V.Jones,  'JO  Pa.  St  2tiO;        *  Barnes  v.  Perine,    9    Barb.    202; 

"VXiNon  V.  Baptist  Ed.  S.>c.,  10  Brirb.  Leftwick v.  Thornton,  18  loWH,  66. 
809;  Gait's  Kx'r  v,  Swain,  9  Giait, 


§  397.  CORPORATIONS.  215 

for  allowance,  and  that  they  failed  and  refused  to  allow  the  same 
or  any  part  thereof. 

IV.  That  a  copy  of  said  claim  as  presented  to  the  said  board 
of  supervisors  is  hereunto  attached  and  made  a  part  of  this 
complaint. 

V.  That  the  defendant  has  not  paid  the  same. 

[Dkmand  ov  Judgment.] 
§  395.  Against  a  County  for  Temporarily  Guarding  Jail. 

Form  No.  82, 
[Title  or  Court  and  Causb.] 
Tlie  plaintiff  complains,  and  alleges : 

I.  [Allege  defendant's  corporate  existence.] 

II.  That  the  plaintiff  performed  services  for  the  said  defend- 
ant in  guarding  the  jail  of  said  county,  from  the da)'  of 

,  18...,  to  and  including  the  day  of ,  18 

III.  That  the  sheriff,  with  the  assent,  in  writing,  of  the  supe- 
rior judge  of  said  county,  emploj'^ed  plain tiflE  to  perform  said 
service  as  a  temporary  guard  for  the  protection  of  the  county 
jail,  and  for  the  safe  keeping  of  prisoners,  and  that  said  em- 
ployment was  necessary. 

IV".  That  said  sheriff  at  the  time  of  employing  said  plaintiff 
promised  plaintiff  that  the  defendant  would  pay  plaintiff  for 
said  services  what  they  were  reasonably  worth,  and  that  said 
services  were  reasonably  worth  the  sum  of  dollars. 

V.  [Allege  presentation,  rejection,  and  non-payment  of  claim 
as  in  preceding  form.] 

Vr.  [If  there  are  other  claims  for  similar  services,  performed  at 
different  dates,  allege  them  as  separate  causes  of  action.] 
[Demand  for  Judgment.]  . 

§  396.    By  a  County. 

Fmjn  No,  83. 
[Title.] 

The  County  of -v 

Plaintiff,  f 

against  l 

A.  B.,  Defendant  ' 

The  plaintiff,  a  corporation  existing  by  £or  under]  the  laws  of 
this  state,  complains  and  alleges : 

I.   [State  cause  of  action.] 

[Dkmand  of  Judgment.] 

§  397.  Corporate  Character  must  be  Alleged. — ^Tt  is  an 
indispensable  allegation,  in  an  action  brought  by  a  corporation, 

1  The  foTPgoing  form  is  founded  on    Mendocino   County,   3   West    Coast 
Beotion  IfilO  of  the   California  Penal     Hep.  201. 
Code,  and  la  sustained  in  Hughes  v. 


216  FORMS  OP  COMPLAINTS.  §  398- 

that  it  is  a  corporation,  and  it  results  from  the  logic  of  plead- 
ing that  the  opposite  party  may  deny  the  allegation.^  In  an 
iaction  to  charge  a  defendant  as  a  municipal  corporation,  in 
Iowa,  it  is  sufficient  to  aver  that  the  defendant  is  a  city ;  and 
the  same  allegation  has  been  held  adequate  in  Ohio.*  Where 
municipal  corporations  are  divided  into  certain  classes,  in  pro- 
portion to  population,  and  it  is  sought  to  charge  a  defendant 
Us  belonging  to  one  of  such  classes,  an  averment  to  that  effect 
is  necessary.3  ^nd  a  complaint  against  a  municipal  corpora- 
tion existing  under  a  new  charter  and  name,  for  work  and  labor 
done  for  the  same  town  under  a  former  charter  and  name,  must 
aver  that  the  new  incorporation  is  liable  for  the  debts  of  the 
old.-* 

§  898.  Parties  to  Actions  against  Municipal  Corpora- 
tions.— In  actions  by  or  against  municipal  corporations,  towns, 
counties,  public  boards,  and  other  official  bodies,  who  are  the 
proper  parties  to  bring  the  action,  or  against  whom  it  should 
be  brought,  depends  largely  upon  the  local  laws  of  each  state, 
to  which  laws  and  the  decisions  thereunder  reference  must 
be  had  for  the  determination  of  the  proper  form  of  action. 
In  California  counties  are  corporations,  but  not  the  people 
thereof,  and  as  such  are  required  to  sue  or  to  be  sued  in  the  name 
of  the  county.'  Thus  an  action  on  a  recognizance  given  in  a 
criminal  case  should  be  brought  in  the  name  of  the  county.' 
So,  also,  in  an  action  for  the  recovery  of  money  from  a  default- 

1  Oroville  etc.  R.  R.  Co.  v.  Plumas  tors  v.  Coe,  40  Id  103;  Supervisors  v. 

County,  37  Gal.  354.     A  substantial  Hall,  42  Id.  59;  in  Missouri.  LHlavctle 

compliance  with   the  requirements  of  Co.  v.  Hixon,  69  Mo.  581  ;  in  In  liMiia, 

the  statute  will  be  sufficient  to   show  Vanarsdale  v.  State,  (i-'i  Ind.  17ti;  Gar- 

a  corporation  de  jure,  in  an  action  be-  n^r  v.  Kent,  70   Id.  4J8;  in  Montana, 

tween  it  and  a  private  person  :  Id.    For  Comni'rs  v.  Linebertr,  3  M(int.3I. 

forms  ot  complaints  under  the  New  '  Stier  v.  Oskaloosa.  41  Iowa,  353; 

York  practice,  in  actionsby  or  against  Mitchell  v.  Trea>urer  ol  Franklin  Co., 

towns,  counties,  supervisors,  and  other  25  Ohio  St.  14.3. 

similar  public  bodies,  see  Carman  v.  ^  Bolton  v.  Cleveland.  85  Ohio  St. 
Mayor,  14  Abb.  Pr.  801;  Doolittle  v.  819;  the  contrary  is  held  in  Indinna, 
BuptTvisors,  18  N.  Y.  155;  Roosevelt  where  such  fact  is  judicially  noiiced 
V.  Draper,  23  Id.  818;  Hathawav  v.  as  a  matter  of  history:  Slullz  v. 
Town  of  Cincinnatus,  62  Id.  434;  State.  65  Ind.  492. 
Town  of  Lewis  v.  Marshall,  56  Id,  *  Lyle  v. '-ommon  Council  of  Alex- 
663;  T«)wn  of  Guilford  v.  Cooley,  58  andria,  1  Cranch  C.  C.  473;  Clear- 
Id.  116;  Town  of  Chautauqua  v."  Gif-  wator  v.  Meredith,  1  WmII.  2-5. 
ford.  8  Hun,  152;  Sutherland  v.  Carr,  »  Cal.  Pol.  Code,  sees.  4000-4003; 
,85  N.  Y.  105;  Hagadorn  v.  Raux,  72  Price  v.  Sacntmento  C".,  •>  Cal.  254; 
Id.  583;  in  Wisconsin,  Cairns  v.  People  ex  rel.  Hunt  v.  Super  vi-^ors,  28 
O'Bleness,  40  Wis.  469;  Braver  Dam  Id.  431;  Smith  v,  Meyers,  15  Id.  33; 
V.  Friiigs,  17  Id.  398;  Supervisors  v.  Placer  Co.  v.  Astin,  8  Id.  30).  Aud 
Kirby,  25  Id. 498;  Dutcher  v.  Dutcher,  the  same  is  true  in  Nevada:  Waitz  v. 
29  Id.  651  ;  Town  of  Pine  Valley  v.  Orm^by  Co.,  1  Nev.  370. 
Town  of  Unitv  40  Id.  682 ;  La  Crosse  *  Mendocino  Co.  v.  Lamar,  80  Cal. 
V.  Melrose,  2j  Id.  459 :  School  Direo-  627. 


§  399.  CORPORATIOi^'S.  217 

ing  treasurer;*  or  to  recover  money  belonging  to  the  general 
county  fund.'  So  an  action  may  be  maintained  in  the  name  of 
the  county  to  recover  upon  a  note  payable  to  the  county,  to  the 
use  of  the  state  scho  )1  fund.^  For  simi  ar  reasons  the  county 
is  the  proper  party  plaintiff  to  object  to  a  contract  made  by  the 
board  of  supervisors  for  building  a  jail  ;*  or  to  conduct  proceed- 
ings by  mandamus  against  county  officials. ^  So,  also,  boards  of 
supervisors  can  not  be  sued  in  their  official  character,  in  ordi- 
nary common-law  actions,  for  claims  against  the  public,  county, 
or  village,  without  express  statutory  provision.^  And  in  an 
action  to  enjoin  a  board  of  supervisors,  when  it  consists  of  three 
members,  at  least  two  must  be  joined  as  defendants.'^  But  an 
action  to  abate  a  nuisance  caused  by  the  obstruction  of  a  public 
highway  must  be  brouglit  in  the  name  of  the  road  overseer, 
and  not  in  the  name  of  the  county.^  In  California,  actions 
against  counties  may  be  commenced  and  tried  in  any  county  in 
the  judicial  district  in  which  such  county  is  situated,  unless 
such  actions  are  between  counties,  in  which  case  they  may  be 
commenced  and  tried  in  any  county  not  a  party  thereto. ^ 

§  399.  Avsrment  of  Daman^  and  Prs33n':al;ion  of 
Claim. — Whenever  it  is  provided  by  statute  that  in  order  to 
render  liable  a  municipal  corporation  the  plaintiff's  demand  or 
claim  must  be  presented  to  a  certain  board  or  f)fficial  foi-  allow- 
ance, the  complaint  must  contain  an  allegation  of  the  facts 
constituting  such  presentation,  and  aver  the  rejec  ion  of  the 
demand  or  claim.^"  Unless  such  facts  are  allege  1,  the  presenta- 
tion can  not  be  proved.^  In  California  it  is  provided  by  statute 
that  "the  board  of  supervisors  must  not  hear  or  consider  any 
claim  in  favor  of  an  individual  against  the  county,  unless  an 
account  properly  made  out,  giving  all  the  items  of  the  claim, 
duly  verified  as  to  its  correctness,  and  that  the  amount  claimed 

*  Mendocino  Co.  v.  Morris,  32  CaL  ^  Trinity  Co.  v.  McCammon,  25  Cal. 
145.  119. 

«  Solano  Co.  v.  Neville,  27  ChI.  408;  «  San  Benito  Co.  v.  Whitesides,  51 

Sharp  V.  Contra  Costa  Co.,  34  Id.  284.  Ca'.  416. 

»  Barry  Co.  v.  McGlothlin,  19  Mo.  »  Cal.  Code  of  Proo.,  spc.  394. 

807.  "  Ernst  V.  KmiKle,  5  Oliin  St.  523; 

*  Smith  V.Myers,  15  Cal.  33.  Russell  v.  Mayor,  1    D:il.v.  2ii8;  Ellis- 
'  Calaveras   Co.    v.    Brockway,    80  sen  v.  Halleo^,  6   Cal.  8Sij;  ilcCann 

Cal.    3J5.     In    New    York,     actions  v.  Sifrra  Couiitv,  7  Id.  12 1 
against   countit'S  should   be  bro'ijjht         '*  City  of  Atchison  v.  Kina:.  9  Kan. 

against  the  stip^Tvisors  as  an  official  550.     But   spe   JiKjuisli   v.  Town    of 

boiird,  and  not  agninst  them  i'divid-  Ithaca,  36  Wis.  108,  where  it  is  held 

ually:     Wild  v.  Supervisors,  9  How.  that  the  failure  to  make  such  allcga- 

Pr  315;  People  v.  Supervisors,  24  Id.  cations  must  be  taken  ml VHntnge  ot  by 

119.  the  defendant,   either  by  motion  for 

*  Hastings  v.  San  Francisco,  18  Cal.  nonsuit  or  otherwise. 
49. 


218  FORMS  OP  COMPLAINTS.  §  400. 

is  justly  due,  is  presented  to  the  board  within  a  year  after  the 
last  item  of  the  account  accrued."^  In  the  construction  of 
this  statute  it  has  been  held  that  a  substantial  compliance 
therewith  is  essential  to  render  the  county  liable  after  the  rejec- 
tion of  the  claim  ;*  and  that  the  plaintiff  must  aver  all  the  facts 
required  by  the  statute  in  relation  to  the  presentation  of  his 
claim,  and  its  rejection  by  the  board  of  supervisors.  Merely 
averring  that  the  claim  has  been  duly  presented  and  rejected  is 
not  enough. 3  Where,  however,  a  board  of  supervisors  entered 
into  a  contract  for  the  erection  of  a  county  jail,  the  work  to  be 
paid  for  in  installments,  on  the  certificate  of  the  architect,  an 
account  giving  the  sum  total  of  an  installment,  without  "all 
the  items  of  a  claim,"  is  sufficient.*  The  necessity  of  pre- 
sentation of  a  claim  is  not  confined  to  causes  of  action  arising 
out  of  contract,  but  includes  cases  arising  from  torts, ^  and  a 
money  judgment.^  Unless  a  claim  is  presented  within  the  time 
limited,  it  is  barred,  and  the  supervisors  have  no  power  to  allow 
it  afterwards  ^^  nor  has  the  legislature  power  to  legalize  an  ille- 
gal claim,  so  as  to  make  it  binding  on  the  county. ^  After  the 
final  action  of  the  board  in  rejecting  a  claim,  the  plaintiff  must 
bring  action  thereon  within  six  months,  or  his  demand  is  barred.^ 
§  400.  Instances  of  Necessary  Allegations  in  Actions 
by  or  against  Municipal  Corporations — Authority  to  En- 
act By-laws. — The  authority  to  enact  may  be  averred  in  gen- 
eral terms.  Where  a  corporation  is  authorized  to  pass  a  by-law 
if  they  find  it  necessary,  and  they  pass  it,  a  declaration  on  the 
by-law  need  not  aver  the  necessity.^"  It  is  sufficient  in  pleading 
to  aver  generally,  that  a  contract  sought  to   be  enforced  is  in 

1  California  Pol.  Code,  «ec.  4072.  demand  before  a  stn't  sijainst  the  cities 

*  Babcock  v.  Goodrici),  47  Cal.  4S8.  of  Brooklyn  and  Butf »  o  ri'-pci-iively, 

*  Itlioda  V.  Alameda  Co.,  bl  Cal.  see  Howell  v.  Ciiv  oi  BuffJ-,  1>  ^. 
860  Y.  51J;  Hart  v.  City  of  Brooklyn,  36 

*  Bibcock  V.  Goodrich,  47  Cal.  488.  Birb.  22t).     In  Nhw    Vork,  a  rseeund 

*  Price  V.  County  of  SacrarnHnto,  6  deman  1  on  the  fx  lir.tiioii  <if  twenty 
Cal.  254;  McCann  v.  Sierra  County,  da\s  after  the  reji-i-tion  of  the  cliiin 
7  Id.  121.  is  required,  and  umitT  that    prai-iice 

*Alden  v.  County   of  Alameda,  43  the  foll)winij  alle^oition  is  osscniial: 

Cal   270.  That  thereafter,  on,  etc.,    and    alter 

T  Carroll  V.  Siebenthaler,  S7C:il.  15)3.  the    expiration    of   twenty   days  lie 

*  Doraingos  v.  County  of  Sacra-  made  a  second  dem md  in  wiiiine, 
mento,  51  Cal.  fiOS.  upon   the  said  ,  for  the  .id- 

*  California    Political    Code,    sec.  jus  ment  of  the  "iii  I   ei^ii  n  ;  but  iho 

4075.     No  action   can  be  maintained  sail    hns    hitherto    wliollv 

against   the    dtv  of   N^nv  York  till  neujiectcd  and  refn-ed  to  mike  an  nd- 

such  claim  has  been  presented  to  the  jus  mont  or  piymfit    the  e  if :     Soe 

comptroller:  Laws   of    N.  Y ,    ISiJO,  A')b.  Forms,  No.  184,  and  authiniies 

c.    379,  sec.  2;  limsell   v.    Mayor  of  there  cited. 

N.  Y  ;  1    Oi\\\  263      For  somewaat         '*•  Stuvvesant  v    Ma^'or  etc.  of  New 
Bimilar  statutes   as  to  Liie  necess.iry      York,  7  Cow.  6S5. 


§  402.  CORPORATIONS.  219 

violation  of  some  municipal  ordinance  or  enactment.  When 
such  ordinance  or  enactment  is  founded  upon  a  statute,  it  is 
not  necessary  to  plead  the  statute  specially.^ 

§  401.  Actions  on  Bonds  and  Contracts. — ^Tn  a  suit  against 
a  municipal  corporation  on  its  bonds,  where  the  complaint  sets 
out  the  bonds;  avers  the  defendant  to  be  a  corporation;  that 
the  corporation  made  and  delivered  the  bonds  on  good  consid- 
eration, under  an  ordinance  passed  by  the  proper  agents  of  the 
corporation,  having  authority  for  that  purpose,  and  that  de- 
fendant has  failed  to  pay ;  it  was  held  that  the  complaint  shows 
prima  facie,  a  liability  on  the  part  of  the  c  x'poration ;  aai  it 
was  not  necessary  to  set  out  the  ordinance,  nor  the  vote,  or 
other  proceedings  of  the  corporate  agents,  or  give  any  further 
description  of  tlie  agents  of  the  corporation. ^ 

Wiiere  a  suit  is  brought  on  a  contract  made  by  a  city,  where 
the  laws  regulating  it  require  the  consent  of  two-thirds  of  its 
electors  to  validate  debts  for  the  borrowed  money,  such  consent 
need  not  be  averred  >n  the  plaintiff's  part.  If  with  such  sanc- 
tion the  debt  would  be  obligatory,  the  sanction  will,  primarily, 
be  presumed.  Its  non-existence,  if  it  does  not  exist,  is  matter 
of  defense,  to  be  shown  by  the  defendant. ^  In  an  action  against 
the  city  of  St.  Paul,  on  a  contract  for  grading  streets,  it  is  not 
necessary  to  allege  that  an  estimate  of  the  expenses  was  filed  by 
the  commissioner,  nor  that  the  contract  was  mada  with  the  low- 
est bidder.* 

In  California,  a  complaint  which  alleges  that  the  plaintiff,  as 
a  justice  of  the  peace,  performed  services  at  the  request  of  the 
district  attorney  for  the  county,  in  cases  wherein  the  people  of 
the  state  were  plaintiffs,  to  the  amount  of  thirty-two  hundred 
dollars,  and  that  defendant  thereby  became  and  is  liable  to  pay 
the  said  sum,  does  not  state  facts  suflScient  to  constitute  a  cause 
of  action  against  said  county.^  A  complaint  in  an  action  against 
a  county  for  damages  sustained  by  the  location  of  a  pultlic  high- 
way over  plaintiff's  land,  laid  out  under  the  act  of  1861,  fails 
to  state  a  cause  of  action  unless  it  avers  that  the  plaintiff  had 
attempted  to  come  to  an  agreement  with  the  board  of  supervis- 
ors as  to  the  am  )unt  of  damages  sustained,  and  could  not  agree 
with  the  board  as  to  such  amount.^ 

§  402.    Actions  for  Medical  Care  of  Sick. — A  complaint 

1  Beman  v.  Tu^not,  5  Sandf.  153.  *  Nash  v.  St.  Paul,  8  Minn.  172. 

>  Uiiderhill  v.  Trustpes  of  the  City  '  Miner  v.  Solano  County,   26  CaL 

ofS-noma,  17  Cil   172.  115. 

*  Gel  poke  v.  City  of  Dubuque,  1  «  Lincoln  v.  Colusa  County,  28  CaL 

Wall.  U.  S.  221.  662. 


220  FORMS  OF  COMPLAINTS.  §  403. 

in  an  action  against  a  county  to  recover  for  medical  care  and 
treatment  of  sick  persons  fails  to  state  a  cause  of  action  if  it  do 
not  aver  that  the  sick  persons  treated  were  indigent  persons 
and  residents  of  the  county.^ 

When  in  an  action  against  a  corporation  for  the  value  of 
medical  services  rendered  its  employees,  the  petition  did  not  al- 
lege any  promise  by  the  defendant,  or  any  fact  by  which  the 
law  would  imply  a  promise,  it  was  held  defective.  An  allega- 
tion that  the  services  were  rendered  at  the  instance  and  request 
of  the  agent  of  the  defendant  is  not  an  averment  that  they  were 
rendered  at  the  instance  and  request  of  the  defendant.' 

§  403.  A:;don  for  lajury  by  Na^ligsace. — The  person 
or  persons  upon  whom  the  law  may  impose  the  duty  eithi-r  to 
repair  a  defect  or  to  guard  the  public  from  an  excavation,  em- 
bankment, or  grading,  and  also  the  oflScer  or  officers  through 
whose  official  neglect  sach  defect  continues,  are  jointly  and 
severally  liable  for  injuries  occasioned  by  their  negl  gence.^  In- 
corporated cities  are  not  liable,  in  California,  for  injuries  sus- 
tained by  private  individuals  caused  by  the  neglect  of  the  city 
officers  in  keeping  its  streets  in  repair,  ualess  made  so  liable  by 
the  acts  under  which  they  are  incorporated  ;^.  nor  for  personal 
injuries  caused  by  the  acts  of  its  officers  at  a  public  hospital  ;* 
nor  for  injuries  to  property  occasioned  by  the  overflow  of  wa  er  by 
reason  of  the  abutment  of  a  bridge  being  wrongfully  built  by 
the  road  overseer  in  the  channel  of  the  stream.^  In  Illinois,  if 
a  city,  in  the  exercise  of  its  rigiit  to  grade  highways,  creates  a 
stagnant  pond  on  a  man's  land,  close  to  his  house,  it  is  liable 
in  danuiges.' 

§  404.  Agiinst  the  Trustees  of  a  Dissolved  Corpora- 
tion for  an  Accounting. 

Form  No.  84. 
[Title.] 

The  plaintiff,  on  behalf  of  himself,  as  well  as  of  all  other 
creditors  of  the  company  who  may  come  in  and  con- 
tribute to  the  expenses  of  this  action,  complains  and  alleges: 

I.  That  the  company  was  incorporated  on  the 

*  .Johnson  V.  Santa  Clara  County,  2S  mpnto,  61  Id.  271.  In  what  cases  an 
Cal.  54).  action  liesagHinst  a  villiijie  for  neirlect 

'  Wells  V.  Pacific  Railroad,  35  Mo.  to  mHintnin  sidewalks,  see  Harriiisifon 

164.  V.  Villaire  of  Corninsr,  51  B.trb.  396. 

*  Knst'jce  v.  .Jahns,  88  Cal.  3.  '  Sherbourne  v.   Yuba  County,  21 

*  Wiiitiiyler  v.  City  of  Los  Angeles,  Cal.  1 13. 

45  C»l.  3'i;  O'Hiilev.  Sacramento,  43  'Crowell  v.  Sonoma  County,  25  Cal. 

Id.   21.';   Kniuse   v.  S:icrameiito,    LI.  813. 

221;  H'irtnmn  V.  SiiM.JoMqiiin  G'unty,  '  Nevins  V.  City  of  Peoria,  41  111. 

2l  lii.  426 ;  Tranter  v.  City  of  Sacra-  503. 


§  405.  CORPORATIONS.  221 

day  of  ,  18 ,  under  the  "act"  [title  of  act]  passed 

,  18 ,  and  the  acts  amending  the  same. 

II.  [State  cause  of  action.] 

III.  Tliatnthe day  of  ,  18  ,  the  said  corpo- 
ration was  dissolved  by  the  judgment  of  the    court  on 

that  dny  duly  given  and  made  in  a  certain  proceeding  in  said 
court  then  pending,  wherein  the  people  of  the  state  of  Califor- 
nia, upon  information  of  the  attorney  general  of  said  state,  was 
plaintiff,  and  the  said  corporation  was  defendant  (or  that  it  was 
dissolved  on  its  own  petition  to  the  county  judge,  or  otherwise, 
as  the  case  may  be). 

IV.  That  tlie  defendants  above  raraed  were,  at  and  preceding 
the  date  of  the  dissolution  of  said  corporation,  the  (trustees, 
directors,  or  managers,  etc.,  according  to  the  fact)  of  said  cor- 
poration, and  upon  its  said  dissolution  became  the  trustees  of 
the  creditors  (or  stockholders)  thereof. 

V.  That  the  defendants,  as  such  trustees,  have  received  a 
large  amount  of  money  and  other  property  belonging  to  the 
said  company,  but  have  refused  to  pay  the  claim  of  the  plaintiff. 

Wherefore,  the  plaintiff  demands  judgment. 

1.  That  the  defendants  account,  under  the  direction  of  the 
court,  for  the  property  received  by  them,  as  aforesaid. 

2.  For  the  paj'ment  to  him  of  dollars,  with  interest 

from  the   day  of ,  18 ,  and  costs,  out  of  the 

funds  in  possession  of  the  defendants,  or  which  they  may  col- 
lect. 

3.  That  the  defendants,  without  delay  proceed  to  the  dis- 
charge of  the  trusts  devolved  upon  them  in  the  premises. 

§  405.  Dissolution  by  Surrender  by  Trustees. — That 
the  trustees  have  the  power  to  surrender  the  franchise,  after  its 
debts  are  paid,  is  a  proposition  which  admits  of  no  doubt ;  and  if 
they  should  do  so  without  having  made  any  disposition  of  its  prop- 
erty, there  being  no  stockholders  or  creditors,  the  personal  prop- 
erty of  the  corporation  would  vest  in  the  state. ^  Chancellor  Kent 
says :  "  The  better  opinion  seems  to  be  that  a  corporation  aggre- 
gate may  surrender,  and  in  that  way  dissolve  itself ;  but  then  the 
surrender  must  be  accepted  by  the  government,  and  be  made  by 
some  solemn  act  to  render  it  complete. "^  in  Angell  &  Ames 
on  Corporations  (sec.    772),  after  announcing  that  some   doubt 

*  2  Kent's  Com.  886 ;  Angell  &  Ames  the  State  of  California   v.  President 

on  Corp.,  sec  195;  People  v.  President  and  Trustees  of  the  College  of  Cali- 

and  Trustees  of  the  College  of  Call-  fornia,  38  Cal.  166;  Sullivan  v.  Tri- 

fo-nia,  88  Cal.  166.  uufo  M.  Co.,  89  Id.  469. 

«  2  Kent's  Com.  811 ;  The  People  of 


222  FORMS  OF  COMPLAINTS.  §  406. 

has  existed  in  England  touching  the  powers  of  a  municipal  cor- 
poration to  surrender  its  corporate  existence,  the  author  con- 
cludes, that  '*  by  far  the  better  opinion  is,  that  where  tlie  sur- 
render is  duly  made  and  accepted,  it  is  effectual  to  dissolve  a 
municipal  body.  In  this  country,  the  power  of  a  private  cor- 
poration to  dissolve  itself  by  its  own  assent  seems  to  be  assumed 
by  all  judges  upon  the  point."^ 

§  406.  Trustees,  Appointment  of,  in  California. — Upon 
the  dissolution  of  a  corporation,  unless  other  persons  are  ap- 
pointed by  the  legislature,  or  by  a  court  of  competent  authority, 
the  directors  or  managers  of  the  corporation  shall  be  trustees  of 
the  creditors  and  stockholders.^ 

§  407.  Powers  and  Liabilities  of  Trustees. — In  California 
the  trustees  or  receivers  of  a  dissolved  corporation  are  jointly 
and  severally  responsible  to  the  creditors  and  stockholders  to 
the  extent  of  the  property  and  effects  of  the  corporation  in  their 
hands. 3  Such  trustees  or  receivers  may  sue  and  recover  the 
debts  and  propertv  of  the  dissolved  corporation.  And  where  a 
common-law  receiver  sues  in  the  name  of  the  corporation,  the 
declaration  must  aver  that  the  suit  is  brought  by  the  direction 
of  the  receiver.*  So  when  a  receiver  is  appointed,  and  the  assets 
are  assigned  to  him,  even  if  the  corporation  is  still  in  being.* 

§  408.  Against  Director  of  Insurance  Company — 
Grounds  of  Unlawful  Dividends  and  Transfers  of 
Assets. 

Form  No.  85. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That    from    the  day   of  ,  18...,  to  the 

day  of  ,  18...,  the  company  was  a  cor- 
poration existing  by  virtue  of  the  laws  of  this  state,  and  author- 
ized by  law  to  make  insurances. 

II.  That  during  the   eaid   time   the    said    corporation   made 

insurances  for  plaintiff,  in  the  sum  of dollars,  on  two 

vessels,  viz.:  dollars  on  a  vessel  named  the  *'  Brother 

Jonathan,"  and dollars  on  a  vessel  named  the    "  Cen- 

1  The  authorities  oiioted  in  support  Potomac  Co.,  8  Pet.  281 ;  The  People 

are:  Hrtmpshlre  v.  bmiiklin,  16  Mass.  of  the  State  of  CHliforniav.  President 

86;  Mi-Liiren  V.  Pennington,   1  Paifre  and  Trustees  of  the   College  of  Cali- 

Ch.  107;  Enfi.'ia   T».ll  Briiige  Co.  v.  fornia,  38  Cal.  166. 

Connecticut  liailna'l  Co.,  7  Conn.  45;  •  Cal.  Civil  Code,  sec.  400. 

Slee  V.  Bloom,    19  Johns.  456;  duml  »  Cal.  Civil  Code,  sec.  400. 

Co.T.  Railroad  Co.,  4  Gill  &  J.  1 ;  Trus-  *  Bank  of  Niagara    v.  Johnson,   8 

tees,  etc.,  v.  Znnesville  C.  and  M.  Co.,  Wend.  645. 

9  Ohio,  203;  Penobscot  Boom  Co.  v.  'Bunk  of  Lyons  v.  Demmon,  Hill 

Lamaon,  16  iiaiue,    224;    ^umm  T.  &  D.  Supp,  808. 


§   409.  CORPOKATIONS.  223 

tral  America;  "  both  of  which  vessels  became  total  losses,  within 
the  mean'ng  of  said  policies  of  insurance,  and  during  the  voyages 
for  wliich  such  insurances  were  made.  And  that  the  amounts  of 
such  insurance  have  not  been  paid. 

III.  That  at  a  meeting  of  the  board  of  trustees  of  said  corpo- 
ration, at  which  defendant  was  present,  during  the  time  aforesaid, 
the  defendant  with  the  other  trustees  made  dividends  to  the  stock- 
holders of  the  said  corporation,  to  a  large  amount,  to  wit,  to  the 

sum  of dollars,  which  dividends  were  not  made   from 

the  surplus  profits  arising  frjm  the  busi.iess  of  said  corpo- 
ration. 

IV.  That  at  a  meeting  of  the  board  of  trustees  of  said  corpo- 
ration, at  which  the  defendant  was  present,  and  when  the  said 
corporation  was  insolvent  and  in  contemplation  of  insolvency,  the 
defendant,  with  the  other  trustee,  made  conveyances,  assignments, 
and  transfers  of  the  assets  and  i)roperty  of  said  corporation,  with 
the  intent  of  giving  a  preference  to  particular  creditors  of  said 
corporation  over  other  creditors  of  said  company. 

V.  That  the  plaintiff  is,  and  was  at  the  times  of  the  aforesaid 
acts,  a  creditor  of  said  corporation  for  the  sum  of  dol- 
lars, as  aforesaid,  and  the  defendant  then  was  a  trustee  of  said 
company.  That  in  consequence  of  the  wrongful  acts  and  viola- 
tions of  law  by  the  defendant,  with  the  other  directors  of  said 
corporation  hereinbefore  mentioned,  the  said  corporation,  prior  to 

said day  of and  while   the  plaintiff  was  such 

creditor,  and  the  defendant  such  trustee,  became,  and  now  is, 
wholly  insolvent ;  that  plaintiff  has  sustained  loss  by  reason  thereof 
in  the  sum  of dollars. 

[Demand  of  Judqmknt] 
§  409.  Against  Directors  of  an  Incorporated  Company 
for  Making  Unlawful  Dividends,  and  Distribution  of 
Stock,  Adapted  to  Section  309  of  the  Civil  Code  of  Cali- 
fornia— ^Naming  the  Defendants  as  Individuals,  not  as 
Directors. 

Form  No  86, 
[Title.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the day  of ,  18...,  and  from  that 

day  until  the day  of  18...,  the com- 
pany was  a  corporation  existing  under  the  laws  of  the  state  of 
California,  and  doing  business  as  such,  in  its  said  corporate 
name. 

II.  That  on  the   day  of  18  ...,  said 

Company  made  and    delivered  to  the  plaintiff  its  promissory 


224  FORMS  OF  COMPLAINTS.  §  410. 

note,  of  whi<!h  the  following  is  a  copy  [insert  copy  of  note]  ; 
and  that  said  promissory  note  remains  wholly  unpaid,  and  there 
is  due  to  the  plaintiff  thereon  the  said  sum  of  $ ,  and  in- 
terest thereon  from  the day  of  ,  18...,  at  the  rate 

of per  centum  per  annum,  all  in  gold  coin  of  the  United 

States. 

III.  That  the  directors  of  the  said  corporation  on  the day 

of ,  18...,  and  while  the  said  corporation  was  so  in- 
debted to  the  plaintiff,  made   and   declared  a   dividend   to  the 

stocicholders  thereof  of  $ per  share,  amounting   in  all  to 

the  sum  of  $ ,  and  afterwards  paid  the  dividend  afore- 
said to  its  stockholders  aforesaid,  and  the  plaintiff  aveis  that 
said  dividend  was  not  made  from  the  surplus  profits  arising 
from  the  business  of  said  corporation. 

IV.  That  on  the  day  of   ,  18...,  the  said  directors 

of  said  corporation  divided  among  and  paid  the  stockholders 
thereof,  the  whole  of  the  capital  stock  of  said  corporation,  to 
wit,  the  sum  of  $ 

V.  That  the  defendants,  A.  B.,  C.  D.,  and  E.  F.,  and  each 
of  them,  were,  at  and  during  all  the  times  aforesaid,  directors  of 
said  corporation,  and  assented  to  the  making  of  said  dividend, 
and  tlie  division  and  payment  of  said  capital  stock  as  afoi  esaid. 

VI.  That  said  corporation  was,  on  the day  of  , 

18...,  dissolved.     [State  how.] 

[Dbmand  of  Judqmknt.] 

§  410.  Essential  Averment. — It  should  appear  that  the 
plaintiff  was  a  creditor  of  the  corporation  at  the  time  the  wrong- 
ful acts  and  violation  of  law  complained  of  are  alleged  to  have 
been  done  or  committed. ^ 

§  411.  Grounds  of  Action. — The  complaint  may  set  forth 
several  grounds,  on  either  of  which  the  defendants  would  be 
liable.'-^  The  statutes  of  the  several  states  differ  so  much  in 
regard  to  the  acts  which  make  directors  or  trustees  of  corpora- 
tions individually  liable  to  stockholders  or  creditors,  and  the 
grounds  under  each  statute  are  so  numerous,  that  we  can  only 
give  the  foregoing  as  suggestions  to  the  pleader,  who  will,  in 
all  cases,  be  required  to  examine  with  great  care  the  statute 
under  which  he  is  pleading. 

§  412.  Statute. — But  when  two  different  statutes  severally 
authorize  an  action  upon  a  certain  state  of  facts,  the  arising  of 
such  state  of  facts  constitutes  but  one  cause  of  action :   and  a 

»  Ogden  V.  Rollo,  13  Abb.  Pr.  800. 

a  Durant  V.  Uarduer,  10  Abb.  Pr.  445 ;  S.  C,  19  How.  Pr.  91. 


§  413.  CORPORATIONS.  225 

plaintiff  must  elect  which  statute  he  will  proceed  under;  and 
can  not  com[jiain  upon  the  same  facts  in  two  counts,  one  under 
each  statute.^ 

§  413.    Individual  Creditor  against  Individual  Stock- 
holder. 

Form  No.  87, 
[Title.] 

The  plaintiff  complains,  and  alleges : 

I.  That  the Company  is   now,  and  since  the 

day  of ,  18...,  has   been  a   corporation  existing  under 

and  by  virtue  of  the  laws  of  this  state,  for  the  purpose  of  min- 
ing for  silver  and  other  precious  metals,  and  that  the  principal 
place  of  business  of  the  said  corporation  is,  and  since  the  said 

day  of ,  18...,  has  been  in  the  city  and  county  of 

San  Francisco,  and  state  of  California. 

II.  That  the   capital    stock   of    said corporation  is, 

and  since  the  said day  of  ,   18..,  has  been  limited 

to shares,  of  the   par  value   of  dollars  per 

share,  making  a  total  capital  of dollars. 

III.  That  the  whole   of  said  capital  stock  of  said  corporation 
was   and  is  issued  to  and  owned   by  various  persons,  who  are 

now  and  have  been   such   owners   of  said  stock  since  the 

day  of 18...,  and   that  the  full   amount   thereof   has 

been  i^aid  into  said  corporation  by  said  stockholders,  and  that 
all  amounts  paid  in  by  said  stockholders  have  been  expended, 
and  that  nothing  now  remains  to  pay  the  claims  of  the  creditors 
of  the  said  corporation,  and  that  said  corporation  is  insolvent. 

IV.  That  on  the day  of  ,   18...,  the  said  corpora- 
tion gave  its  promissory  note  to  one  A.  B.  for  the  sum  of 

dollars,   payable   in  gold   coin,   with   interest    at per  cent 

per  month,  a  copy  of  which  is  hereby  annexed,  marked  "  Ex- 
hibit A." 

V.  That  said  note  was  afterwards  indorsed  to  the  plaintiff  by 
the  said  A.  B. 

VI.  That  on  the day  of ,  18...,  at ,  the 

defendant  made  its  acceptance  in  writing  for  the  sum  of  

dollars,  in  gold,  with  interest  from  date,  also  payable  in 
gold,  for  supplies  then  furnished  by  the  plaintiff  to  said  cor- 
poration, at  its  special  instance  and  request,  and  delivered  the 
same  to  the  plaintiff. 

VII.  That  on  the day  of ,  at ,  the  de- 
fendant made  its  certain  other  acceptance  in  writing  for  the  sum 

»  Sipperly  v.  Troy  and  Boston  R.  R  Co.,  9  How.  Pr.  83. 
EsTEE,  Vol.  I — 15, 


226  FORMS  OP  COMPLAINTS.  §  413. 

of dollars  payable  to  the  plaintiff,  in  gold  coin,  with 

interest  at  the  rate  of  per  cent  per  month,  from  date,  pay- 
able in  gold  coin,  for  supplies  and  money  then  and  there  fur- 
nished by  the  plaintiff  to  said  corporation,  at  its  special  instance 
:and  request. 

VIII.  That  on  or  about  the day  of ,  in  the  dis- 
trict court  of  the judicial  district,  county  of  , 

in  this  state,  the  plaintiff  commenced  an  action  ai^ainst  the  said 
corporation,  for  the  sum  of  .. dollars  principal  and  in- 
terest due  upon  said  note  and  acceptances,  and  for  costs  and 
■damages,  all  in  gold  coin. 

IX.  That   afterwards,    on    the  day  of   ,   18..., 

personal  service  of  summons  and  certified  copy  of  complaint  in 
said  action  was  made  on  the  said company. 

X.  That  afterwards,  to  wit,  on  the day  of ,  18..., 

judgment  was  rendered  in  the  said  action  against  the  said  com- 
pany, the  defendant  therein,  and  in  favor  of  this  plaintiff,  for 
the  full  amount  of    dollars,  in  United  States  gold  coin, 

XI.  That  afterwards,  to  wit,  on  the day  of ,   18..., 

'execution  was  issued  in  the  said  action  upon  said  judgment  by 
the  clerk  of  the  said  court,  and  addressed  to  the  slieriff  of  the 
said  city  and  county  of  San  Francisco,  and  which  execution  was 

thereupon  delivered  to  said  sheriff  and  on  the  day  of  

,  18...,  he  returned  the  same  wholly  unsatisfied,  and  that 

no  property  could  be  found  within  the  said  county  belonging  to 
said ;..  company. 

XII.  That  the  said  company  has  not  paid  the 

said  judgment,  and  that  it  still  remains  in  full  force  and  effect 
unsatisfied,  unreversed,  and  not  appealed  from ;  and  that  the 
plaintiff  is  the  owner  thereof. 

XIII.  That  ever  since  the day  of ,18...,  and 

also  at  and  during  the  time  when  the  said  debts  and  liabilities, 
for  sai  1  moneys  advanced  and  supplies  furnished,  accrued  and 
were  contracted  and  incurrred  by  said  corporation,  and  the  said 
note  given  and  acceptance  made,  the  defendant  was  a  st  ck- 

holder  in  the  said   corporation  to  the  amount  of shares 

of  the  capital  stock  of  said  corporation. 

XIV.  That  the  total  amount  of  indebtedness  of  the  said  cor- 
poration is    dollars. 

XV.  That  the  proportion  of  said  indebtedness,  for  which  de- 
fendant is  liable  to  plaintiff,  is   dollars  per  share,   in 

United  States  gold  coin,  amounting  to  the  full  sum  of  

dollars  in  gold  coin,  with  interest  at  the  rate  of per  ceufe 


§  414.  CORPORATIONS.  227 

per  month,  and  payable  in  ^old  coin,  on  dollars  of  the 

above  amount  sued  for,  and  interest  at  the  rate  of per  cent 

per  month,  in  gold  coin,  upon  the  sum  of dollars,  the 

remainder  of  the  above  amount  sued  for. 

XVI.  That  although  often  requested,  stiU  defendant  has 
failed,  neglected,  and  refused  to  pay  the  same,  or  any  part 
thereof. 

Wherefore,  plaintiflf  demands  judgment  against  the  defendant 

for  the  sum  of dollars  in  United  States  gold  coin,  and 

interest  on  the  sum  of dollars,  at  the  rate  of  .....  per 

cent  per  month,    compounded   monthly,    payable   in   like  gold 

coin,  and  interest  on  the  sum  of ....  dollars,  at  the  rate  of 

per  cent  per  mouth,  in  United  States  gold  coin,  and  for 

costs  of  suit. 

[Exhibit  "A,"  ANNBrKc] 

§  414.    The  Sams— Shorter  Form. 

Form  No.  88, 
[TiTLK.] 

The  plaintiff  complains  and  alleges: 

I.  Thut  at  the  times  hereinafter  mentioned,  the 

company  was  a  corporation  created  by  and  under  the  laws  of 
tliis  state,  organized  pursuant  to  an  act  entitled  "An  act"  [title 

of  act],  passed ,  18...,  and  the  acts  amending  the  same, 

and  supplementary  thereto. 

II.  That  on  the day  of   ,  18...,  said  company,  by 

its  agent  duly  authorized  thereto,  made  its  promissory  note 
dated  on  that  day,  a  copy  of  which  is  hereto  annexed,  and 
marked  "Exhibit  A." 

III.  That  on  the day  of ,  18...,  in  an  action  in 

the  district  court  of  the judicial  district,  for  the  county 

of ,  to  recover  the  same  from  said  company,  judgment 

was  rendered  by  said  court  against  said  company,  in  favor  of 

the  plaintiff  for dollars,   being dollars,  the 

amount  due  thereon,  with  interest,  amounting  to dol- 
lars, and  costs. 

IV.  That  execution  thereon  was  thereafter  issued  against 
said  company,  and  returned  wholly  unsatisfied. 

V.  That  at  the  time  said  debt  was  contracted,  the  defendant 
was  a  stockholder  of  said  company,  holding  stock   therein   to 

the   amount  of dollars,  being   shares  of  the 

par  value  of dollars  each;    aud   that  he  still  is  such 

stockholder  therein. 

[Dkmand  of  Judqmtent  ] 
f£xHiBiT  "A"  Anmicxud.] 


228  FORMS  OP  COMPLAINTS.  S  415. 

§  415.  Nature  of  Stockholder's  Liability  for  Corpo- 
rate Debts. — Atthecf»minoii  law.  astockliolder  was  not  individ- 
ually li'jible  for  the  debts  of  the  corpora' ion.'  Such  liabilitv  has 
been  verj'  generally  created  by  statute  in  the  several  states.  These 
statutes  differ  laryely  in  their  det.iils,  and  in  the  extent  of  the 
liability  which  they  impose  upon  the  stockholder.  Some  of 
the  statutes  make  a  stockholder  liable  for  the  debts  of  the  cor- 
poration to  the  extent  of  the  value  of  the  stock  held  by  him. 
By  others  the  liability  is  limited  to  such  a  proportion  of  the  debt 
or  claim  against  the  corporation  contracted  during  the  time  he 
was  a  stockholder  as  the  amount  of  stock  or  shares  owned  by  the 
stockholder  bears  to  the  whole  of  the  subscribed  capital  stock 
or  shares.  This  latter  is  the  limit  of  the  liability  imposed  on 
the  stockholders  in  California.^  In  this  state  the  constitution 
leaves  to  the  legislature  the  power  to  regulate  the  liabilities  of 
stockholders,  and  to  prescribe  the  rule  by  which  each  stock- 
holder's proportion  of  such  debts  shall  be  ascertained. ^  The 
stockholder's  liability  in  California  is  not  that  of  a  mere  suety. 
It  is  primary  and  original.  Ami  the  same  identical  act  which 
casts  the  liability  on  the  corporation,  also  casts  it  on  the  stock- 
holder.'* Consequently  such  liability  is  not  contingent  upon  a 
recovery  against  the  corporation,^  and  is  not  affected  by  a  sus- 
pension of  the  remedy  against  the  corporation.^  Where,  how. 
ever,  the  corporate  debt  is  satisfied  in  part,  there  is  also  a  pro 
tanto  discharge  of  the  liability  of  the  stockholders.  Accord- 
ingly, in  an  action  against  a  stockholder  for  his  proportion  of 
a  corporation  debt  which  had  been  partially  satisfied  by  a  sale 
of  mortgaged  and  pledged  property,  the  defendant  is  only 
liable  for  his  proportion  of  indebtedness  after  the  payments 
have  been  credited.'  Such  liability  is  not  in  the  nature  of  a 
penalty  of  forfeiture,  but  a  liability  arising  from  contract.^  It 
is  not,  therefore,  barred  by  the  provision  of  the  statute  of  lim- 
itations providing  that  an  action  to  enforce  a  penalty  or  for- 
feiture must  be  brought  within    two  years  after  the  cause   of 

» Whitman    v.    Cox,  25    Me.  885;        *Pk'.nce    v.    Lynch,   88    Cil.  52''; 

Shaw  V.  Boylan,  16  Ind.  384;  Ireland  Young  v.  Rospnbaum,  .S9  Id.  (ilrt;  S  ■• 

V.    Palestine,  etc.,    Turnpike    Co.,  19  noma  Valley  Bank  v.  Hill,  59  Id.  107. 
Ohio  St.  369;  Gray  v.  Coffin,  9  Cush.         »  Davidson  v.  Rankin,  34  Cal.  503. 
192;  Nichols  v.  Thomas,  4  Mass.  23J;        •  Young  v.  Ro3cMil)aum.  39  Cal.  646; 

Vincent  v.  Chapman,  10  Gill  &  .J.  279.  Prince  v.  Lynch,  38  Id.  528. 

'  Const.,  arL  12.  sec.  3   (1879);  Cal.        '  San  Jo-6  Savings  Bank  v.  Pharis, 

Civil  Code,  sec.  322 ;  French  v.  Tesche-  68  Cal.  380. 

maker,  24  Cal.  643;  Mok.  Hill  Canal        «  Corning  v.  McCulloujrh,  1  N.  Y. 

C«.  V.  Woodbury,  14  Id.  265.  47;  Norrls  v.  Wrenschall,  34  Md.  492; 

•  Larrabbeev.  Baldwin,  85  Crtl.  155;  Coleman    v.    White,    14    Wis.    700; 

Fxeucb  V.  Ttisuhemaker,  24  Id.  639.  Eriukaon  v.  Nedmitb,  46  N.  H.  371. 


§416.  CORPORATIONS.  229 

action  accrued.*  In  New  York,  however,  it  has  been  held  that 
the  liability  of  stockholders  is  in  general  an  original  liability, 
and  an  action  against  them  is  upon  a  contract  made  by  them 
in  a  qualified  corporate  capacity.  Where,  however,  the  corpo- 
rate capacity  is  not  thus  qualified,  the  members  or  oflScers  are 
not  thus  liable  as  original  or  principal  debtors,  by  reason  of 
something  imposed  on  them  by  the  statute,  and  the  action 
must  be  upon  the  statute  to  recover  a  debt  in  the  nature  of  a 
forfeiture. 2  The  present  constitution  of  California  limits  the 
stockholder's  liability  to  debts  contracted  by  the  corporation 
while  he  occupied  such  relation.^  This  is  also  the  construction 
that  the  courts  had  put  upon  the  old  constitution,  in  holding 
that  a  stockholder  did  not  render  himself  liable  by  becoming 
such  for  the  pre-existing  debts  of  the  corporation.^  Such  lia- 
bility is  not  released  by  the  stockholder  subsequently  assigning 
his  stock.' 

§  416.  Parties  to  the  Action. — la  California  any  creditor 
of  a  corporation  may  institute  joint  or  several  actions  against 
any  of  the  stockholders,  and  in  such  action  may  recover  the 
proportion  of  the  debt  for  which  each  defendant  is  liable,  and 
have  a  several  judgment  a^^ainst  each  stockhoMer,  in  conform- 
ity therewith.*  In  New  York,  in  conformity  with  the  statutory 
provisions,  any  separate  creditor  may  maintain  an  action  for  the 
enforcement  of  his  demand,  although  it  seems  to  be  conceded 
in  that  state  that  a  joint  action  may  be  brought  against  all  the 
stockholders,  for  the  benefit  of  all  the  creditors.'''  In  Ohio,  on 
the  other  hand,  it  is  proviled  by  statute,  in  conformity  with 
prior  decisions,  that  the  action  must  be  aga'U-it  all  the  stock- 
holders, and  by  all  the  creditors,  or  by  one  suing  in  behalf  of 
all.*  While  in  Missouri  it  has  been  held  that  if  the  statute 
makes  the  stockholders  liable  for  an  amount  equal  to  the 
amount  of  their  stock,  their  liability  is  not  joint,  but  each  must 
be  sued  separately.'    If  the  state  is  a  holder  of  stock,  it  can  not 

1  Orppn  V.  Bf^rkman.  fiS  Cal.  54\  have  jiHgrnent  for  the  stockholder's 

*  Bird  V.  HayJen,  2  Abb.  Fr.,  N.  S.,      proportion  of  sinh  corporate  debts. 
61.  *  t^Hlifornia  Civil  Code.  see.  322. 

«  Const,  art.  12.  sec.  8,  «  Cilifornia   Civil    Code.  sec.  322; 

*  Larrabbne  v.  Baldwin,  85  Cal.  156.,      Larr-ibbt-e  v.  Bnl.lwin,  35  C  il.  15H. 

In  ths  c«se  it  was  held  tliat  to  di'ter-  ''  Weeks  v.  Love,  50  N.  Y.  5(J8; 
min"  how  much  anyone  stockholder  Mann  v.  Pen'z.  3  Id.  415;  Garrison 
is  liable  to  pay  to  a  corporate  credit."  ir,  v.  Howe,  17  Id.  458;  Brigsjs  v.  Pen- 
it  is  nece-sary  to  find  the  whole  niman,  8  Cow.  3S7 ;  Osajood  v.  Lay- 
amount  ot  the  indt'btfilne^s  of  the  tin,  5  Abb.  Pr..  N.S.,  1. 
corporation  created  while  he  was  a  •  K.  S.,  sec.  32')0;  Umsted  v.  Bua- 
Btock'iolder:  and  any  one  cr'^ditor  kirk.  17  Ohio  St.  113. 
whoHH  duiuiiud  is  large  euuiigh  may  ^  Purry  v.  Turuer,  55  Mo.  418. 


230  FORMS  OF  COMPLAINTS.  §  417. 

be  made  a  party  defendant.^  And  where  any  stockholder  pays 
his  proportion  of  any  debt  dne  from  the  corporation,  incurred 
while  he  was  a  stockholder,  he  is  relieved  from  any  further  lia- 
bility for  such  debt,  and  if  an  action  has  been  brouifht  against 
him  upon  such  debt,  it  must  be  dismissed  as  to  him.*  One 
stockholder,  however,  can  not  recover  against  another  a  debt 
due  him  from  the  company. ^  And  as  between  the  corporation 
and  its  stockholders,  the  corporate  property  is  the  fund  pri- 
marily liable  for  the  corporate  debts.* 

§  417.  Essential  Averments  in  Such  Action. — An  ac- 
tion to  enforce  the  personal  liability  of  stockholders  is,  in  many 
cases,  to  be  considered  as  founded  on  that  vestige  of  the  rela- 
tion of  partnership  between  the  members  of  the  company  which 
the  charter  or  general  act  failed  to  remove.^  In  such  action 
the  complaint  must  show  that  the  defendant  was  a  stock- 
holder at  the  time  the  debt  was  contracted  ;^  and  an  averment 
to  this  effect  in  the  words  of  the  charter  is  sufficient ;'  other- 
wise a  judgment  which  has  been  rendered  by  default  will  be  set 
aside. ^  So,  also,  the  grounds  on  which  they  are  individually 
liable  must  be  shown.^  And  in  pleading  the  amount  of  the 
stockholder's  liability,  it  must  be  averred  that  such  stockholder 
held  an  amount  of  stock  equal  to  the  amount  for  which  he  is 
sought  to  be  held  liable.  ^*>  It  is  not  necessary,  however,  to  aver 
that  the  corporation  is  insolvent.^^  Nor  in  an  action  to  enforce 
a  promissory  note  is  it  necessary  to  aver  the  facts  showing  for 
what  the  note  was  given. ^^  In  many  of  the  states,  before  a 
creditor  can  proceed  against  a  stockholder,  he  must  have  recov- 
ered j'ldgment  against  the  corporation,  and  the  execution  is- 
sued thereon  must  have  been  returned  unsatisfied.  Where 
such  facts  are  necessary  to  fix  the  stockholder's  liability  the 
complaint   must    allege  their  performance.^^     Where,    however, 

*  Miors  V.  Zanesville  etc.  Turnp.  'Freplandv.McCuUousrh,  1  Den.414. 
Co,  11  Oliio.  273.  Mlookor  v.  Kiigour,  2   C.  >S  C.  R. 

s  ('a  if  Tiiia    Civil   Code,   SPf.  322;  5nO;  Kearney  v.   Buitles,  1  Ohio  8t. 

LarmMiee  v.  Baldwin,  3')  Cnl.  l-^e.  8ti2. 

«  Bailey  V.  liaiicker,  3  Hill  (N.  Y.),  •  Geerv  v.  New  York  etc  S.  8.  Co., 

188.  12  Abb.  Pr.  2(38. 

♦  Prince  v.  Lvnrh,  38  Cal.  528.  *"  Chaiiibera  v.  Lewis,  16  Abb.  Pr. 
"C.-niing  v."^McCullou>,'h,  1   N.  Y.  443. 

47;  CoiiHiit  V.  Van  Schai<-k,  24  Barb.  ^'Pirkins  v.  Church,  31   Barb.  84; 

87;    Bailny  V.   BanckHf.  3    Hill.   88.  Davidson  v.  Rmkin,  31  Uai.  503, 

For    H    form     of   com[)laiut    again-it  *' Gf  bliard  v.  Eastman,  7  Minn.  58. 

stockbolilcrs,    see  Herkimer  Co.   B'k  *'  Conant  v.  Van  Schaick,  24  Barb. 

V.   Furman,    17  Barb,   lib;     VVitber-  87;   Wri<rht  v.  iMcGorina>k.  17  Ohio 

head  V.  Allen,  28  id.  6(51.  Si.  8*i ;  Blake  v.  Hinkle,  10  Yert?.  218 ; 

«  Y  .UMir  V.  New  Yorketc.  S  8.  Co.,  Cowies    v.    Bartell,     2    West,"    Jjaw 

15  Al>b.  Pr.  fift;    Larrabbee  V.  Baldr  Month.  41;  Havs  v    New  Bait.   etc. 

>rin,  35  Cal.  155.  Tp.  Co.,  1  Handy,  281. 


§  418.  CORPORATIONS.  231 

the  performance  of  such  conditions  precedent  would  plainly 
be  of  no  avail,  as  where  the  corporation  is  insolvent,  or  in  the 
hands  of  a  receiver,  or  dissolved,  the  necessity  of  averring  a^ 
recovery  of  judgment  no  longer  exists,  if  the  complaint  con- 
tains other  facts  sufficient  to  excuse  it.*  Such  rule  does  not 
prevail  in  California,  as  in  that  state  the  stockholder's  liability 
is  created  at  the  same  time  as  the  liability  against  the  corpora- 
tion.' Though  a  stockholder  is  individually  liable  for  debts 
contracted  while  he  was  a  stockholder,  yet  a  judgment  recovered 
against  the  corporation  while  he  is  a  stockholder,  upon  a  con- 
tract entered  into  before  he  became  such  stockholder,  is  not  a 
contract  within  the  meaning  of  the  act  rendering  such  stock- 
holder liable.  And  proof  of  a  judgment  against  a  corporation 
does  not  show  when  the  debt  was  contracted.^ 

§  418.  Who  Liable  as  Stockholders  in  Such  Action. 
The  civil  code  of  California  provides  that  not  only  shall  those 
whose  names  appear  on  the  books  of  the  corpovation  be  liable 
as  stockholders,  but  also  every  equitable  owner  of  stock,  al- 
though the  same  appears  on  the  books  in  the  name  of  another ; 
and  also  every  person  who  has  advanced  the  installments  or 
purchase  money  of  stock  in  the  name  of  a  minor;  and  also  any 
guardian,  or  other  trustee,  who  voluntarily  invests  any  trust 
funds  in  the  stock.  The  pledgee  of  stock  is  not  liable  as  a 
stockholder  within  the  meaning  of  such  code.  In  corporations 
having  no  capital  stock,  each  member  is  individually  and  per- 
sonally liable  for  his  proportion  of  the  debts,  and  actions  may 
be  brought  against  him,  either  alone  or  jointly  with  other  mem- 
bers, to  enforce  such  liability.  The  liabilit}'  of  stockholders  of 
foreign  corporations  doing  business  in  California  is  the  same  as 
that  of  stockholders  of  domestic  corporations.*  Prior  to  the 
enactment  of  such  statute  it  was  held  that  one  who  never  ac- 
cepts, but  refuses  to  accept  any  stock  in  a  corporation,  is  not  a 

*  Shellinpjton  v.  Rowland,  53  N".  T.  the  judcjment   against  the   company, 

871;     Lovelt   v.  Cornwell,    6    Wend,  spe  Bailey  v.  Bancker,  3  Hill  (N.  Y.), 

869;  People  V.  Barilett,  8    Hill,    570;  188;  Andrews  v.  Murray,  9  Al.k  Pr.  8. 
Loomis   V.  Titft,  16  Barb.  641  ;   Dry-        *  Larrnbl)ee    v.    Baldwin,     35     C«l. 

den  V.  Kelloirg,  2  Mo.  App.87;  State  156;  Miller  v.  White,  60   N.  Y.  137. 

Savings  Ass'n  v.  Kellnsig,  62  Mo.  583;  But  see  Hastings  v.  Drew,    76  Id.  9, 

Paine  V.  Stewart,  33 Conn. 516;  Merrill  where  such  jiid^'ment  was  said  to  be 

V.  Suffolk  B:iiik,  31  Me.  57;   lletzel  v.  at   least  prima  facie  evidence  of  lia- 

Tanneliill  Silver  Min.  Co.,  4  Abb.  N.  bility;  also  Corse  v.  Sandlord,  14  Iowa, 

Ca«.    40;    Warner    v.   Callender,    20  2.5;  Thayer  v.    New    England,  etc., 

Ohio  St.  190.  Print   Co.,  108  Mass.  5J3;     Millikea 

"Davidson    v.   Rankin,  34  Cal  503;  v.  Whitehouse,  49  Me.  627;    Tyng  v. 

Prince  v.   Lvnch,   38  Id.   528;     Cal.  Clarke,  9  Hun,  269. 
Civ.   Code,   s^'P.  322.     As  to  whether        *  Caiiloruia  Civil  Code,  sec.  822. 
a  stockholder  ia  liuble  for  the  cost  of 


232  FORMS  OF  COMPLAINTS.  §  419. 

stockholder,  even  though  the  secretary  enters  his  name  in  the 
books  as  such,  and  the  stock  book  of  the  corporation  is  not  ad- 
missible in  evidence  in  an  action  by  a  creditor  of  the  corpora- 
tion against  one  claimed  to  be  a  stockliolder  for  the  purpose  of 
proving  that  he  is  such  stockholder.^  And  in  Ohio,  parties 
whose  names  are  nominally  on  the  corporation  books,  but  who 
never  were  actually  owners  of  stock,  their  contracts  not  having 
been  fulfilled,  are  not  liable  as  stockholders.* 


CHAPTER    ly. 

EXECUTORS  AND  ADMINISTRATORS. 

§  419.    By  an  Executor. 

F«rm  No.  89, 

[TrTLB.] 

A.  B.,  Executor  of  the  Will  of  ■) 

C.  D.,  Deceased,  Plaintiff,  f 

against  ?' 

John  Doe,  Detendant.  ) 

The  plaintiff,  as  such  executor,  complains,  and  alleges: 

I.  [State  cause  of  action.] 

II.  That  the  said  C.  D.  in  his  life-time  made  and  published  his 
last  will,  whereby  he  appointed  the  plaintiff  executor  thereof. 

III.  That  on  the  day  of ,  18..,  at , 

the  said  C.  D.  died. 

IV.  That  on  tlie  day  of ,  18..,   at , 

said  will  was  proved  and  admitted  to  probate,  in  the  superior 
court  in  the  county  of ,  in  this  state. 

V.  That  thereupon,  on  the  day  of  ,  18...,  let- 
ters testamentary  were  issued  on  the  said  will  to  the  plaintiff, 
by  the  superior  court  of  said  county. 

VI.  That  thereupon  the  plaintiff  duly  qualified  and  entered 
npon  the  discharge  of  his  duties  as  executor,  aud  that  said  let- 
ters testamentary  have  not  been  revoked. 

[DkMAND  of  JUDQMaNT.] 

§  420.    By  an  Administrator. 

Form  No.  90. 
[Title.] 

The  plaintiff,  as  such  administrator,  complains,  and  alleges: 

I.  [State  cause  of  action  accruing  to  the  intestate.] 

II.  That  on   the day  of ,  18...,  at , 

the  said  A.  B.  died  intestate. 

»  Miidgett  V.  Horrell,  33  C«l.  25. 

«  Wehrman  v.Reakirt,  1  C.  S.  C.  R.23a. 


§  421.  EXECUTORS  AND  ADMINISTRATORS.  233 

III.  That  on  the  day of  ,  18  ,  letters  of  ad- 
ministration upon  the  estate  of  the   said  A.  B.  were   issued  by 

the  superior  court  of  the    county  of  ,  in  this  state,  to 

the  plain  iff. 

IV.  That  the  plaintiff  thereupon  duly  qualified  as  such  ad- 
ministrator, and  entered  upon  the  discharge  of  the  duties  of 
his  said  office,  and  that  said  letters  of  administration  have  not 

been  revoked. 

[Demand  of  Jttdoment.] 

§  421.  Essential  Avermsnts  of  Representative  Capac- 
ity.— The  capacity  of  the  plaintiff  to  sue  is  independent  of  the 
cause  of  action,  and,  therefore,  in  an  action  by  an  executor  or 
administrator  to  enforce  a  cause  of  action  on  which  he  is  author- 
ized to  sue  as  such,  the  complaint  must  allege  his  representative 
capacity.  No  formal  mode  of  allegation  is  essential,  provided 
the  plaintiff's  right  to  maintain  the  action  is  substantially 
shown,  so  that  issue  may  be  joined  thereon. ^  In  conformity 
■with  this  rule,  the  complaint  should  state,  in  cases  of  testacy, 
the  death  of  the  decedent,  his  leaving  a  last  will  and  testament, 
the  appointment  therein  of  the  plaintiff  as  executor,  the  pnjbate 
of  the  will,  the  issuance  of  letters  testamentary  thereon  to  the 
plaintiff,  and  his  qualification  and  entry  upon  the  discharge  of 
his  duties  as  executor,  and  that  he  is  still  acting  as  such.^  In 
cases  of  intestacy,  the  death  of  the  decedent,  without  leaving  a 
last  wi'.l  and  testament,  must  be  shown,  together  with  appro- 
priate allegations  of  the  plaintiff's  appointment  as  administra- 
tor, his  qualification  and  entry  upon  the  discharge  of  his  duties 
as  such,  and  that  he  is  still  so  acting;  and  this  is  so  although 
the  plaintiff  may  be  the  public  administrator.^  In  the  case  of 
either  an  executor  or  administrator,  the  date,  place,  and  court 
by  whom  letters  were  granted  should  be  stated.'*     If  this  is  not 

^  B!»nk  of  Lowville  v.  Edwards,  11  *  Mo-rpll  v.   Dickpv,   1  Johns.  Ch. 

How.  Pr.  21t);  Johnson  v,  Kemp,  11  156;  Williams  v.  Sorr?,  6    Id.   353; 

Id.  18i);  Preoiiient  of  Hanover  Bniik  Vroom    v.  Van    Horn,  10  Paii^e  Ch. 

V.    Wnkhain,    16   Id.  97,-  Thomas  v.  650;  Vermilva  v.  Bnatlv,  6  IJarh.  429; 

Cameron,    16    Wend.  579;  Halkck  v.  Warren  v.  EJdv.  18  Abb.  Pr.  2=«;Gu- 

Mixer,  16Cal.  574;   Barfield  v.  Price,  lick  v.  Gulit-k,  21  How.  Pr  22:  liobins 

40L1.5:;5;  Beach  v.  Kin?,  17  Wend.  v.  Wells.  26ld.  16;  Emery  v.  Hihlreth, 

197;  Welles  V.   Webster,  9  H.<w,  Pr.  2Grav,  228;  Bloom  v.  Burdick.l  Hill, 

251;  Enirlishv.  Roche,  6Ind.62;  Dim-  1^4;  Beach  v.   King,  17    Wend.  197; 

Cnn  V.  Duticaii,  19  Mo.  368;  State  v.  Gillet    v.     Fairchild,     4    Dc-nio,    80; 

Matron,  38  Id.  489;  Bird   v.   Cotton,  White  v.  Jov,  3  Kern.  83;  Forrest  v. 

67   Id.  568;    Slate    v.  Patton,   42  Id.  Mavor  of     N.  Y,    13    Abb.  Pr.  350; 

530;  Headlee  v.  Cloud,  51  Id.  301.  Christopher  v.  Stockholm,  6   Wend. 

'Thomas    v.  C'lmeron,    16    Wend.  36;  Tolmie  v.  Dean.  1  W.T.  HO;  Dav- 

579:   Halleok  v.    Mixor,  16   Cal  574;  ton    v.  Connah.    18    How.     Pr.  326; 

Barfi.-ld  V.  Price,  40  Id.  535.  Shaldon  v.  Hoy.  11   Id.  11;  Barfield 

8  Ketchum  v.  Alorrell,  2  N.  Y.  Leg.  v.  Price,  40  Cal.  535. 
Obi.  58. 


234  FORMS  OF  COMPLAINTS.  §  422. 

done,  the  complaint  is  bad  on  demurrer  on  that  ground. ^  By 
parity  of  reasoning,  where  suit  is  brought  by  an  administrator 
during  tlie  minority  of  the  executor,  his  powers  being  deter- 
mined when  tlie  executor  attains  full  age,  the  fact  that  he  has 
not  attained  majority  must  be  averred. ^  Where  the  plaintiff's 
representative  capacity  is  shown,  profcrt  of  letters  testamentary 
or  of  administration  is  no  longer  necessary.^ 

§  422.  Illustrations  of  SaSScisnt  and  Iiisuffi::ient  Alle- 
gations.— -In  New  York,  the  word  "as"  is  essential  in  the  title 
to  the  action,  nor  can  it  be  easily  replaced  by  any  other  word. 
Thus,  a  declaration  which  invariably  and  more  than  a  dozen 
times  mentioned  the  plaintiff  as  "  tlie  said  Sarah,  executrix  as 
aforesaid,"  closing  with  profert  of  letters  testamentary,  was 
h'3ld  to  be  fatally  defective  under  the  old  practice.'*  In  the  same 
state  a  complaint  averring  that  the  plaintiff  has  been  duly  ap. 
pointed  and  qualified  by  the  surrogate  of  New  York,  to  act  as 
the  "  sole  executor  of  A.  B.,  deceased,"  was  held  not  sufficient 
in  an  action  to  recover  a  demand  due  the  estate  of  the  plaint- 
iff's testator  ;5  and  the  allegation  "duly  appointed"  was  held  to 
be  not  insiitfloient,  but  indefinite.^  A  complaint  commencing 
"A.  B.,  administrator  of  the  g(jods,  etc.,  of ,  de- 
ceased, plaintiff  in  this  action,"  and  containing  no  other  siate- 
me;»t  of  the  fact  of  the  plaintiff's  appointment  as  administrator, 
does  not  allege  that  he  is  administrator,  or  show  tliat  he  pros- 
ecutes in  that  capacity.'''  On  the  contrary,  a  bill  alleging  that 
there  was  no  instrument  purporting  to  be  the  last  will  and 
testament  of  M.,  deceased,  duly  executed  and  attested;  that  it 

1  Shildon  V.   Hoy,  11  How.  Pr.  11.  see,    also,    Gould   v.   Glflss.    19  Barb. 

For  ii  form  of  iivt'niieiit  HlleL;iiig  ap-  1S">;  Slmldon  v.  Hoy,  11  U.)w.  Pr.  14; 

pointment,    see    Bivich    v.    King,    17  Oij:'le'wl)uri;   Bnuk  v.  Van  R  ns^elner, 

Wend.   197;    Gillett  v.    Fairchild,   4  6    Hill.  241.     If  the    plainiitf'ii  idiar- 

Den.  80.     Section   IRl,  N.  Y.  Probate  acler  is  lluia  stated   in   the  title,  it  is 

Code,  and  section   18')5,  Cal.  Code  C.  not  neccs-iary  to  repeat  it.  but  he  may 

P.,  are  applicuble   to   the   decision  of  aterwiirds  be  called   "the    plaintifi".*' 

the   surroi^ate  ^probate  court)  in  the  Siiniley  v.  Chappell.  8  Cow.  ■2;^'), 

appointment  ot  an  ad'iiinistrHtnr:  An-  ^  P. .nest    v.  Mayor    of    N.    Y.,  13 

derson  v.  Potter,  5  Cal.  6-3;  Wheeler  Abb.  Pr.  ;^50. 

V.  Dakin,  12    How.    Pr.   537.     For  a  «  (  bcney  v.  Fisk,  22  How.   Pr.  2.38; 

complaint  bv  an   administrator,  with  P' ople  v.  Walker,  28  BMrb.  30o;  Peo- 

the  will  annexed  of  a  deceased  judg-  pie  v.  Kyder,  2  Kern.  4  i3. 

ment  creditor  who  was   resident  of  a  ^  M  •iriit  v.  St*Hiiian,  6    N.  Y.  168; 

foreign   state,  see   Wheeler  v.  Dakln,  S'lHldnn    v.   Hoy,   11     How.    Pr.    11; 

Id.  Cliristoplier  v.  Stockliolm,  6    Wetid. 

S  Yeaton  v.  Lynn.  5  Pet.  223.  3H;   Worden  v.  Woiihingion,  2  Barb. 

*  Bright  V.  Cuirie.  5  Sand.  433;  3(')S.  Promises  ma<le  to  the  testator 
Welles  V.  W''bsier,  9  H^w.  Pr.  2ol.  should  not  be  stated   as  made  to  "the 

*  Hetisehall  v.  Roberts,  5  East,  151,  plaint itf."  Wordeii  v.  Wortliinirton, 
154.  Compare  Mcnitt  v.  Seaman,  6  Id.  H70;  Christopher  V.  blockholm,  6 
N.  Y.  (-2   Seld  )   IH-^.    with    Smith  v.  Weiid.  36. 

Leviiius,  8   N.   Y.  (4  Seld.)  474;  and 


§  422.  EXECUTORS  AND  ADMINISTRATORS.  235 

was  admitted  to  probate  as  such  will ;  tliat  letters  testamentary 
were  issued,  and  that  the  executors  took  upon  ihemselves  the 
execution  of  tlie  instrument,  sufficiently  shows  that  the  instru- 
ment was  a  will,  and  that  it  had  been  so  adjnd2;ed  by  the  surro- 
gate's court.^  And  so,  also,  a  complaint  which  describes  the 
plaintiff  as  an  executor,  and  states  the  cause  of  action  as  an  in- 
debtedness due  to  the  plaintiff  as  an  executor,  and  that  the  money 
was  had  and  received  by  the  defendant  for  the  use  of  the  plain- 
tiff as  such  executor,  sufficiently  shows  that  the  plaintiff  sues  in 
his  representative  capacity  ^  And  an  averment  that  letters  testa- 
tamentary  on,  etc.,  and  not  before,  were  issued  to,  etc.,  is  suffi- 
cient to  import  that  no  other  or  prior  letters  had  been  issued. ^ 
In  Missouri,  a  petition  stating  the  character  in  which  the  plaint- 
iff sued,  the  indebtedness  to  the  intestate,  and  the  prayer  for 
judgment  as  administratrix,  was  held  sufficient  as  showing  her 
right  to  sue.^  In  California,  in  an  action  brought  by  an  admin- 
istrator who  has  been  appointed  after  the  resignation  of  a 
former  administrator,  the  complaint  is  sufficient  if  it  avers  the 
issue  of  letters  to  the  former  administrator,  tliat  he  qualified 
and  entered  upon  the  discharge  of  the  trust,  that  he  resigned,  and 
his  resignation  was  accepted  by  the  probate  court,  and  that 
the  plaintiff  was  afterwards  appointed  administrator,  and  qual- 
ified, and  that  letters  were  issued  to  him.*  And  the  same  effect 
was  given  to  an  averment  that  letters  of  administration  were 
issued  on  a  certain  da}^  by  the  apjiropriate  court,  to  the  plaint- 
iff, who  duly  qualified  as  such  administrator,  and  entered  upon 
the  discharge  of  his  duties  as  such,  and  now  is,  and  has  been, 
continuously  from  the  date  of  appointment,  such  a.lministrator.^ 
In  that  state  there  are  only  two  classes  of  administrators,  special 
and  general;  and  no  such  officer  as  an  "administrator  de  bonis 
non"  is  known  to  our  law.  When  the  autliority  of  a  general 
administrator  is  terminated,  and  a  new  one  appointeil,  the  latter 
takes  the  place  of  the  first,  and  succeeds  to  the  office,  clothed 
with  the  same  powers,  and  subject  to  the  same  restrictions ;  and 
when  he  invokes  the  action  of  tlie  court,  he  must  institute  the 
same  proceedings,  and,  so  far  as  he  is  able,  must  make  a  similar 
showing.'^  The  order  for  the  appointment,  the  qualifications  of 
the  appointee,  and  the  issuing  of  letters  to  him  thereon,  are  all 
necessary  proceedings  to   invest  such  appointee   with  the  office 

I  \r-i«on  V.  Jopps.  13  BMib.  401.  »  Lurasv.Todd,  28  Pnl.  1R2. 

•  Scraiitom  v.  Farmers'   etc  Bank,  •  .\JeCutoli'-nti   v.  Weto.i,  1  West 
8^:   Hi.il).  527.                                               Coa-t  R.-p.  850. 

«    :.niMinin  v.  Dp  Grott.  1  Den.  151.         '  Havnesv.  Meeks,  20  Cal.288. 

•  Duncau  v.  Duucau,  19  Mu.  3o6. 


286  FORMS  OF  COMPLAINTS.  §  423. 

of  an  administrator.  The  appointment  is  in  fieri  until  tlie  ap- 
pointee has  qualified  and  received  his  letters.^ 

§  423.  Action  by  Foreign  Administrator  orExecutor. 
Except  as  modified  by  the  statute,  the  authority  of  an  executor  or 
administrator  is  limited  to  the  state  or  country  in  which  he  re- 
ceives his  authority.  Consequently  he  is  not  authorized  to 
maintain  an  action  in  his  representative  capacity  outside  of 
such  state.  If  objection  is  not  raised  to  the  plaintiff's  capacity 
to  sue,  either  by  answer  or  demurrer,  it  is  waived.^  But  it  has 
been  held  that  a  plaintiff  may  maintain  a  suit  in  the  United 
States  circuit  court,  as  a  citizen  of  Maine,  in  his  charactr  of 
administrator  if  he  has  taken  out  his  letters  in  New  Hampshire. ^ 

§424.  C3mtnsicem3nt  of  Camplaiut  byE^3cator  or 
Administrator  Saing  in  his  own  Right. 

Farm  No.  91. 

[TiTLK.] 

The  plaintiff  complains,  as  administrator  of  the  estate  [or  exe- 
cutor of  the  will]  of  A.  B.,  deceased,  and  alleges: 

I.     [State  cause  of  action.] 

[Dkmand  of  Judgment.] 

§  425.  Executor  or  Administrator,  when  m^y  Sne  in 
Own  Name. — Contracts  made  by  an  executor  or  a(bnini.4trator 
subsequently  to  the  death  of  the  deceased,  althougli  affecting 
the  assets  of  the  estate,  may  be  sued  on  by  such  executor  or 
administrator  in  his  personal,  and  not  in  his  representntive  ca- 
pacity. The  action  need  not  necessa  ily  be  in  such  form,  as  the 
executor  or  administrator  has  an  election  whether  to  sue  per- 
sonally or  in  a  representative  capacity.**  Thus  an  executor  or 
administrator  may  sue  in  his  f>wn  name  to  recover  back  money 
of  the  estate  paid  by  mistake  ;5  or  on  a  note  payable  to  him  as 
representative;^  or  to  bearer;^  or  to  him  indivi  lually  for  money 
due   tie    estate;®   or  for  the  price  of    property  sold  by  him   as 

*  E-tate  of  Himilton,  34  Cal.  464.  *  Mowry     v.     Adams,     14     Mass. 

SHtinv.   H.iidersori,  50  Cal.  367;  827. 

Oasliman  v.  Wood,  6  Hum,  520;  Hob-  '  Rojjprs  v.  W'-aver,    Wri<;ht,  174; 

bins  V.  Wells,  18  Abb.  Pr.  191 ;    Con-  Guike  v.  Uhlig,  55  How  Pr.  434. 

nor's  Adiii'x   v.   Paul,  12   Bur^h,  144;  *  liitteiihouse    v.    Ammerman,    64 

Duncan  v.  Wlif(lb»'p,  4  Col.  143;  Mul-  Mo.  1«7;   Merritt  v.  S  amen,  H  N.  Y. 

liti's  A(ipe:il,  40  Wis    154;  H;irte  v.  16'<;  Carleton  v.  Hvinirton.  17  Iowa, 

Houcliiti,    50    Iiid.    327;    Wrie:ht    v.  579;  KalkhoflF  v.  Zui;hrlaut,  40  Wis. 

Wri,i?l)t,  72  Id.  149;  S.  W.  K'y  v.'Paulk,  427. 

24Ga.  370:   D..ui;herty  v.  Walker,  15  '  Holcomb    v.    Beach,    112    Mass. 

Id.    4M;    Brooksliiro    v.    Dtibose,     2  450. 

Jones  Eq.  279;  Rucks  v.   Taylor,  49  «  McGeheft  v.   Slater,  50  Ala.  431; 

Miss.  560;  Palmer  V.  Ins.  Co.',  84  N.  Walt    v.     Walsh,      10    H.-isk.     314; 

Y.  67.  Co.'ker  V.  Co'kor.  2  Mo     A  pp.   451; 

^''srter  v.  Tread  well,  8  Story  C.  Bluakeaship  v.  ^Juumu,  50  Ala.,  506. 

a  2S. 


§  427.  EXECUTOKS  AND  ADMINISTRATORS.  237 

repre-5ontative;^  or  on  a  judgment  obtained  by  him  ;2  or  for  the 
wrongful  conversion  of  the  property  of  the  estate, ^  although 
such  conversion  was  made  prior  to  his  appointment.  In  such 
case  he  has  a  special  property  in  the  goods  taken  sufficient  to 
support  the  action.  No  demand  is  necessary  if  such  taking  were 
were  tortious.^ 
§  426.     A3;ainst  an  Admini-strator  or  Executor. 

Fonn  No.  92. 

[TiTLB.] 

A  B.,  Plaintiff,  '\ 

against  / 

0.  D.,  AininisfrHtor  or  (Executor)  of  the  r 

esiHtH  of  K.  P.,  deceased,  Defendntit  \ 

The  plaintiff  complains,  and  alleges: 

I.  [State  a  cause  of  action  ag^ainst  the  decedent.] 

II.  [Vll'sce  death  of  decelent,  and  defendant's  appointment 
as  aliui'iistrator  or  executor,  as  in  preceding  forms.] 

III.  That  said  defendant,  as  such  executor  [or  administrator], 

in   pursuance    of  an  order  of    the  superior   court  of    

county,  caused  a  notice  to  tlie  creditors  of  said  deceased  to  be 

piiilis'iad  in  ,  the  same  being  the  newspaper  designated 

by  said  co^irt,  requiring  all  persons  having  claims  against  said 
deceased  to  exhibit  them,  with  the  necessary  voucliers  to  the 
said  executor  [or  administrator]  at  [specify  the  place],  the  same 
being  specified  therein  as  his  place  of  business,  within  .... 
months  after  the  first  publication  of  said  notice ;  that  said  notice 
was  first  published  on  the  day  of ,  18  .. 

IV.  That  on  the day  of  ,  18...,  at   ,  the 

claim  hereinbefore  set  forth,  verified  by  the  oath  of  the  claim- 
ant, and  upon  which  this  action  is  founded,  was  duly  presented 
in  writing  by  the  plaintiff  to  the  defendant,  as  such  administra- 
tor [or  executor],  for  allowance.  And  that  the  same  was  by 
him,    as   such  administrator  or  executor,  rejected,  on  the   •••• 

day  of  ,  18..     That  a  copy  of  said  claim  as   presented 

is  hereunto  attached  and  made  a  part  of  this  complaint 

[Demand  ot  Jxtdgmknt.] 

§  427.  Action  against  Executor  or  Administrator  on 
New  Promise. — Whether  an  executor  or  administrator  can, 
by  a  new  promise,  revive  a  debt  barred  by  the  statute  of  limita- 
tions, depends  upon  the  special  statutes  of  the  different  states. 
Whei'e  there  is  no  limitation  upon  the  power  of  the  executor  or 
administrator  imposed  by  statute,  it  has  been  held  that  a  new 

1  Laycock  v.  Oleson,  60  111.  30.  »  Munch    v.    Williamson,   24    Cal. 

«  Page    V.    Cravens,   3  Head,  883 ;     167. 
Hunt  V.  Lisle,  6  Yerg.  417.  *  Ham  y.  Henderson,  60  CaL'867. 


238  FORMS  OF  COMPLAINTS.  §  428. 

promise  would  avoid  the  statute.^  In  South  Carolina  it  has 
been  held  that  before  the  bar  of  the  statute  is  complete,  the  ad- 
ministrator may  revive  the  debt  by  an  acknowledgment  or  prom- 
ise.^ In  another  case  in  that  state  it  was  held  that  a  promise 
by  the  executor  would  revive  a  debt  barred  by  the  statute  at  the 
time  of  the  acknowledgment  or  promise,  if  not  barred  at  the 
death  of  the  testator. ^  In  California,  the  allowance  of  a  claim 
against  an  estate,  after  it  is  barred  by  the  statute,  is  prohibited.* 
But  a  widow,  executrix  of  an  estate  of  her  deceased  husband, 
who  has  an  interest  in  the  same,  who  gives  her  own  note  for  a 
debt  of  her  husband,  which  is  barred,  under  the  mistaken  opin- 
ion that  it  is  still  binding,  will  be  held  personally  liable  thereon. ^ 
§  428.  Presentation  of  Claims  against  Estate. — Statutes 
have  been  passed  in  most  of  the  states  which  limit  the  absolute 
right  of  the  creditors  of  a  dccoased  debtor  to  proceed  against 
the  estate.  These  statutes  differ  greatly  in  their  details,  but 
their  general  effect  is  to  require  the  creditor  to  present  his 
claim  to  the  executor  or  administrator,  within  a  certain  time, 
for  allowance.  If  not,  such  claim  is  forever  barred.  In  Cali- 
fornia the  executor  or  administrator  is  required  to  publish  notice 
to  creditors  to  present  their  claims  against  the  estate.  If  the 
value  of  the  estate  exceeds  ten  thousand  dollars,  such  time  is 
limited  to  ten  months  after  the  first  publication ;  otherwise  to 
four  months.  All  claims  arising  upon  contract,  whether  the 
same  be  due,  not  due,  or  contingent,  must  be  presented  within 
the  time  limited  in  the  notice,  and  any  claim  not  so  presented 
is  barred  forever.  Where,  however,  it  is  made  to  appear  by  the 
affidavit  of  the  claimant,  to  the  satisfaction  of  the  court,  or  a 
judge  thereof,  that  the  claimant  had  nq  notice,  by  reason  of 
being  out  of  the  state,  it  may  be  presented  at  any  time  before  a 
decree  of  distribution  is  entered.''  Every  claim  which  is  due 
when  presented  to  the  executor  or  administrator  must  be  verified 
by  the  affidavit  of  the  claimant,  or  some  one  in  his  behalf,  to  the 
effect  tliat  the  amount  thereof  is  justly  due;  that  no  payments 
have  been  made  thereon  which  are  not  credited,  to  the  knowl- 
edge of  the  affiant.     If  the  claim  be  not  due  when  presented, 

*  Executors  of  Niemcewicz  v.  Bart-  v.  Shed,  15  Mnss.  6,  and  note,  p.  8; 
lett,  13  Ohio,  271;  liruwn  v.  Ander-  Thompson  v.  Brown,  IR  Id.  171;  Itoss 
Bon.  13  Mass.  201.  v.  Koss,  6  Hun,  80  ;  EsUte  of  Hidden, 

«  Wilson's  Aiim'r  v.  Wilson,  1  Mc-  23Cal.  362. 

Mullan'8  Eq.  329.  »  Mull  v.  Van  Trees,  50  Cal.  547. 

»  Pearoe  v.  Ex'rs  of  Zimmerman,  •  Code  of  Civil  Proc,   sees.  1490- 

Harp.  355.  1493;  Estate  of  Tavlor,  16  CaU  434; 

*  Code   of  Civil   Proc,   sec.  1499.  CuUertoa  v.  Mead,  22  Cal.  96. 
Upon  this  subject  generallvtsee  Dawes 


§  428.  EXECUTORS  AND  ADMINISTRATORS.  239 

or  be  continsent,  the  particulars  of  such  claim  must  be  stated.^ 
Ui>on  tlie  presentation  of  a  claim  the  executor  or  administrator 
must  iiidoi'se  thereon  his  allowance  or  rejection,  with  the  date 
thereof.  If  he  allows  the  same,  it  must  be  presented  to  the 
judge  for  his  approval,  who  must  indorse  thereon  his  allowance 
or  rejection.  If  the  executor  or  adrafinistrator,  or  the  judge, 
refuse  or  neglect  to  indorse  such  allowance  or  rejection,  for  ten 
days  after  the  claim  has  been  pi^sented  to  him,  such  refusal  or 
neglect  may,  at  the  option  of  the  claimant,  be  deemed  equiva- 
lent to  a  rejection  on  the  tenth  day.  If  the  claim  be  presented 
to  the  executor  or  adminis  rator  before  the  expiraion  of  the 
time  limited,  it  is  a  suffici  -nt  presentation,  altliou^h  not  acted 
upon  until  after  the  expimtion  of  such  time.^  After  the  allow- 
ance of  a  claim  by  the  executor  or  administrator  and  the  judge, 
the  statute  provides  that  it  shiU  be  filed  in  court  within  thirty 
days,  and  thereafter  it  ranks  among  the  acknowledged  debts  of 
the  estate  to  be  paid  in  due  course  of  administration. 3  The 
foregoing  provision,  so  far  as  the  time  in  which  the  filing  of  an 
approved  claim  is  concerned,  has  been  held  merely  directory.^ 
If  the  claim  be  founded  on  a  bond,  bill,  note,  or  other  ins'ru- 
ment,  a  copy  of  such  instrument  must  accompany  the  claim. 
If  the  claim  has  been  secured  by  mortgage  or  other  recorded 
lien,  it  is  sufficient  to  describe  the  mortgage  or  lien,  and  refer 
to  the  date,  volume,  anl  page  of  its  record.^  If  the  claim  is 
rejected,  either  by  the  executor  or  administrator,  or  judge,  suit 
must  be  brought  thereon  within  three  months  after  the  date  of 
its  rejection,  if  it  be  then  due,  or  within  two  months  after  it 
becomes  due,  otherwise  it  is  barred  forever.^  The  time  during 
which  there  is  a  vacancy  in  the  administration  is  not  included 
in  such  limitation.'  If  an  action  is  pending  against  the  dece- 
dent at  the  time  of  his  death,  the  plaintiff  must,  in  like  man- 
ner, present  his  claim  for  allowance,  authenticated  as  in  other 
cases ;  and  no  recovery  can  be  had  in  the  action  unless  proof  be 
made  of  such  presentation. ^  If  the  defendant  dies  after  verdict 
agninst  him,  and  before  judgment,  the  claim  need  not  be  pre- 
sented. The  proper  practice  in  such  case  is  to  direct  the  entry 
of  a  judgment  against  him  by  name,  and  then  suspend  all  fur- 
ther proceedings  until  the   substitution   of   an   executor  or  ad- 

1  Code  of  Civ.  Proc,  sec.  1494.  Benedict  v.  Hagein,  2  Cal.  8«i5;  Hall 

«  Code  of  Civ.  Proc,  sec.  14%.  v.  S.nith,  19  Id.  85;  Rice  v.  Inskeep, 

»  Code  of  Civ.  Proc,  sec.  1497.  34  Id.  224. 

*  Willis  V.  FHrley,  24  Cal.  601 ;  Es-  ''  Danglada  v.  De  la  Guerra,  10  Cal, 
tate  of  Sohrocder,  46  Id.  304.  886 ;  Smith  v.  Hail,  19  Id.  85. 

6  Code  of  Civ.  Proc.  sec.  1497.  •  Code  of  Civ.  Prou,  sec.  1502, 

•  Code   of  Civ.  Proc,    sec  1498; 


240  FORMS  OF  COMPLAINTS.  §   429. 

ministrator.i  Such  judgment  is  not  a  lien  on  the  real  estate  of 
the  deeeilent,  but  is  payable  in  due  course  of  admnistration,^ 
An  objection  that  such  claim  was  not  presented  to  the  adminis- 
trator or  executor,  after  the  death  of  the  defendant,  must  be 
made  in  the  court  below.  It  comes  too  late  if  made  in  the  ap- 
pellate court  for  the  first  time.^ 

§  429.  The  Sam3 — Further  CDnstruction  of  California 
Statates. — The  words  "claimant"  and  "claim"  and  "de- 
mand," as  used  in  the  California  statutes,  are  synonymous,  and 
have  reference  to  such  debts  and  demands  against  the  decedent 
as  might  ha\^e  been  enforced  against  him  during  his  life-time, 
by  personal  action,  for  the  recovery  of  money,  and  upon  which 
only  a  money  judgment  could  have  been  rendered.'*  They  do 
not  include  expenses  incurred  in  the  administration, ^  or  the 
family  allowance,^  as  the  object  of  the  statute  is  mainly  to 
prevent  estates  from  being  squandered  or  wasted  in  unuecces- 
sary  litigation ;''  nor  an  assessment  for  public  improvements 
made  after  the  death  of  the  decedent. ^  And  in  an  action  of 
accounting  between  a  surviving  partner  and  the  representative 
of  the  deceased  partner,  the  surviving  partner  is  entitled  to  an 
allowance  for  sums  drawn  by  the  deceased  partner  from  the 
partnership  assets  in  his  life-time,  although  the  claim  for  the 
sum  so  drawn  has  never  been  presented  for  allowance  and  ap- 
proval, ^  as  the  claim  for  such  advances  need  not  be  presented 
until  the  partnership  affairs  are  wound  up.^"  Nor  need  a  claimant 
of  specific  property  present  a  claim. ^  Claims  which  are  necessary 
to  be  presenied  may  be,  before  notice  to  creditors  is  published.^^ 
In  Ohio  a  formal  presentation  of  a  claim,  which  the  adminis- 
trator had  previously  seen,  is  not  necessary  when,  on  being 
requested  to  allow  it,  he  refuses,  the  claim  being  then  present 
in  the  owner's  pocket. ^^  ^  refusal  to  allow  a  claim  in  that  state 
is  equivalent  to  a  rejection,^*  but  the  requirements  of  presentation 
does  not  apply  to  proceedings  to  revive  an  action  before  judg- 
ment  against  the   personal  representative.^^    In  Missouri  a  de- 

1  Estate  of  Piiare,  50  Oal.  40.  »  Manuel  v.  Escolle,  2  West  Coast 

»Code  of  Civil  Proc.    sec.   1506;  Rep.  375. 

Drake  v.  Foster,  52  Cal.  225.  i"  Gleason  v.  White,  34  Cal.  258. 

»  Drake  T.  Foster,  52  Cal.  225.  "  Cunter  v.  Jant-s,  9  Cal.  643. 

*  Grav  V.  Palmer,    9Cal.  tittJ;  Fal-  '2  Ri^ketson  v.  Richardson,   19   Cal. 

Ion  V.  Butler,  21    Id.   82;     Estate  of  330;  .Jrtnin  v.  Browne,  9  ld.37. 

McClrtUslaiid.  52  Id.  5f58.  "  Kyle's  Adin'r  v.  Kyle,  16  Ohio  St 

6  Doc-k  V.  Gherke,  6  C.il.  666.  15. 

«  Kstnte  of  McXJlausland,  62  Id.  569.  "  Harteretal.  v.  Tagsjart's  Ex'rs,  14 

TEllissen  V.  Halleok,    6    Cal.  386;  Ohio  St.  122 ;  Stambaugh  v.  Smith,  23 

Falknerv.  Folson,  Id.412.  Id.  584. 

»  Hanco(  k  v.   Wliittemore,  50  Cal.  '^  Musser'a  Ex'rs  v.  Chase,  29  Ohio 

622 ;  People  v.  01  vera,  43  Id.  492.  SU  577. 


§  431.  EXECUTORS  AND  ADMINISTRATORS.  241 

fendant  in  an  action  by  an  administrator  need  not  aver  presenta- 
tion of  a  set-off.i  Nor,  in  New  Jersej^,  need  an  assignee,  whose 
assignor  presented  the  claim,  again  present  it.^  In  Arltansas  a 
plaintiff  seeking  to  foreclose  a  mortgage  or  vendor's  lien  need 
not  present  the  same  for  allowance. ^  In  Idaho  it  has  been  held 
that  when  tlie  United  States  comes  into  court  seeking  to  enforce 
a  claim  against  an  estate,  it  is  subject  to  the  same  statutory  re- 
quirements as  individuals  and  must  present  its  claim.'*  The 
non-presentation  of  a  claim  only  defeats  the  present  right  to 
recover.  If  the  plaintiff  has  failed  in  his  action  by  reason  of 
such  non-presentation,  the  claim  may  be  presented  if  within 
the  statutory  time,  and  if  rejected,  a  new  suit  instituted  which 
will  not  be  barred  by  the  former  judgment.^ 

§  430.  Allowance  and  Rejection  of  Claims. — An  allow- 
ance of  a  claim  by  one  executor  is  sufficient  to  bind  the  estate.* 
Such  allowance  mast  be  made  in  writing;  a  verbal  allowance 
gives  the  claimant  no  cause  of  action."''  After  allowance  by  the 
executor  or  administrator,  and  approval  by  the  judge,  the  claim 
has  the  force  and  effect  of  a  judgment  against  the  estate,  and  is 
pa3^able  in  due  course  of  administration. ^  The  presentation  of 
a  claim  to  the  executor  or  administrator  is  the  commencement 
of  a  suit  upon  it,  and  stops  the  running  of  the  statute  of  limi- 
tations.^  And  where  the  executor  neglects  to  indorse  his  allow- 
ance or  rejection  for  more  than  ten  days,  the  law  presumes  that 
the  claim  was  rejected  on  the  expiration  of  the  tenth  day.^o  The 
claimant  of  a  rejected  claim,  in  recovering  judgment  thereon  is 
entitled  to  interest  from  the  time  of  presentment. ^^ 

§  431.  Presentation  of  Claim  Secured  by  Mortgage 
— In  California. — The  statutes  of  California  regulating  the  pre- 
sentation of  claims  secured  by  mortgage  or  other  lien  have  been 
frequently  changed.  The  decisions  of  the  courts  in  that  state, 
unless  interpreted  with  reference  to  the  provisions  of  the  par- 
ticular statute  applicable  thereto,  would  seem  in  irreconcilable 
conflict.  Under  the  original  sections  of  the  act  to  regulate  the 
estates  of  deceased  persons,  the    requirement    that    all  claims 

1  Lfly,   Adm'r    etc    v.  Mechanics*  ''Pitte  v.  Shipley,  46  CHl.t54. 
Bank,  til  Mo.  72.  8  Estate. .fC....k,'l4  Gal.  129;  Deck's 

2  Uyan  v.  Flanagan,  Adm'x,  38  N.  Estate  v.  Gh'^rke,  6  Id.  6'>6 ;  Estate 
J.  L.'l61.                                       ^  of   Hidden,    2.S    Id.    3'i3:  Magrnw   v. 

»  Allen  V.  Smith.  29  Ark.74;!^ms  McGUvrm,  2'}  Id.  420;  Pico  v.  De  la 
V.  Richnrdson,  32Id.  297;  McClM  V.     Guerra,     18    LI.    422;  xMcKinney    v. 


Owens,  32  Id.  443.  %       Davis,  6  Mo.  "iOl;  Kennerly  v,  Shep- 

«  United   States  v.  Hailey,  2  W%t    ley,  15  Id.  640. 
Coast  Rep.  824.  %       »  Beckett  v.  Selover.  7C.il.  215. 

6  Ilent'^ch  V.  Porter,   10    Oal.    56%      ^o  Rice  v.  Tuskeep,  34  Cal.  22'). 

•  Willis  V.  Farley,  24  Cal.  490.         ^      "  Pico  v.  Stevens,  18  Cal.  377. 
EST1.E,  Vol.  1—16 


:242  FORMS  OF  COMPLAINTS.  §  431. 

must  be  presented  for  allowance  or  rejection  before  any  action 
could  be  maintained  thereon  was  held  broad  enough  to  include 
claims  secured  by  mortgage.^  Such  continued  to  be  the  law  on 
this  subject  until  the  adoption  of  the  code  of  civil  procedure  in 
1873.  By  sections  1493  and  1500  thereof  it  was  rendered  un- 
necessary for  the  holder  of  a  mortgage  or  other  lien  to  present 
the  same  to  the  representative  of  the  estate.  In  1874  these 
sections  were  amended  so  as  to  render  such  presentation  neces- 
sary. In  1876  these  sections  were  again  amended  so  as  to  make 
.-a  presentation  unnecessary.  Section  1500,  after  providing  that 
no  holder  of  any  claim  against  an  estate  shall  maintain  any  ac- 
tion thereon  unless  the  claim  is  first  presented  to  the  executor 
or  administrator,  contains  the  following  provision:  "An  action 
may  be  brought  by  any  holder  of  a  mortgage  or  lien  to  enforce 
the  same  against  the  property  of  the  estate  subject  thereto, 
where  all  recourse  against  any  other  property  of  the  estate  is 
expressly  waived  in  the  complaint ;  but  no  counsel  fees  shall  be 
recovered  in  such  action  unless  such  claim  be  so  presented." 
These  sections  as  amended  in  1876  continue  to  be  the  law  in 
California,^  and  render  it  unnecessary  for  a  pledgee  to  present 
his  claim  to  the  representative  of  the  pledgor,  unless  he  seeks 
recouise  against  other  property  of  the  estate  than  that  pledged.^ 
And  in  construing  the  amendments  of  1874  repc  aling  the  pro- 
vision authorizing  actions  upon  mortgages  to  be  maintained 
against  the  property  of  the  estate  of  a  deceased  mortgagor, 
without  presentation,  it  has  been  held  that  the  same  are  not  re- 
troactive, and  do  not  give  to  a  notice  to  creditors  previously 
published,  any  effect  which  it  did  not  have  under  the  law  under 
which  it  was  published ;  and  that  a  mortgage  falling  due  after 
the  amendment  was  not  barred  b}'^  a  failure  to  present  the  claim.'* 
If,  however,  the  mortgage  or  other  lien  is  on  the  homestead,  the 
claim  must  be  presented  for  allowance,  as  section  1475  of  the 
code  of  <  ivil  procedure  requires  such  presentation,  and  section 
1500  will  be  construed  so  as  to  give  it  effect.^  But  where  a 
debtor,  before  his  decease,  conveys  land  to  a  person  in  trust,  to 
secure  his  promissory  note,  and  after  his  decease  the  creditor 
fai  s  to  present  his  claim  to  the  executor  or  administrator  within 
the  time  fixed  by  the  statute  after  publication  of  notice  to  cred- 

*  Prohate  Act,  sees.  180,  136;  Ellis-  *  Hibernia  Savinejs  etc.  Soc.  v.  Jor- 

•en  V.  HnlU'ck,  6  ChI.  8H6;  Pico  v.  De  dan.  5  Pac.  C.  L.  .)'.  381. 

la  Giierra,  18  Id.  428;  Fallon  v.  But-  '  Estate  of  Kibbe.  57  Cal.  407. 

ler,  21  Id.  82;  Willis  v.   Farley,  24  *  Hibernia  S.  &  L.  Soc  v.  Hayes, 

Id.  490;    Ellis   v.  Polhemus,  27    Id.  56  Cal.  297. 

850;    Pitte    v.  Shipley,   46    Id.  160;  »  Camp  v.  Grider,  62  Cal.  2a 
Marsh  v.  Dooley,  62  I(i.  232. 


§  433.  EXECUTORS  AND  ADMINISTRATORS.  243 

itors.  the  executor  can  not  invoke  the  power  of  a  court  of  equity 
to  com]);'!  the  surrender  of  the  security,  or  to  enjoin  the  cred- 
itors fro:n  selling  the  land  under  the  power  contained  in  the  deed 
of  trust.i  This  rule  is  bas^d  upon  the  well-known  doctrines  that 
statutes  of  limitatious  do  not  destroy  the  right  of  action,  but 
merely  bar  the  rein3dy,  ani  that  he  who  seeks  equity  must  do 
equity. 

§  452.  Allegation  of  Presentation,  and  Rejection  of 
Claim  — Where  the  statute  provi  les  that  claims  must  be  presented 
for  a'lowance,  anl  rejectel  before  action  can  be  maintained 
thereon,  all  the  facts  necessary  to  show  a  valid  presentation  and 
rejection,  with  the  dates  on  which  they  severally  occurred,  must 
be  alleged.  It  is  well  also  to  attach  to  an  1  make  part  of  the  com- 
plaint a  copy  of  the  claim  as  presented,  that  the  court  may  judge 
of  its  legal  sufficiency .2 

§  433.  Forms  of  Complaints— D33cription  of  Party— 
Calamity — Promise. — In  an  action  against  executors  for  a 
legacy,  plaintiff  must  aver  and  prove  existing  assets. ^  A  legatee 
who  has  been  represented  by  counsel  at  the  allowance  of  accounts 
against  the  estate,  will  not  be  allowel,  after  a  lapse  of  time,  to 
come  in  and  have  the  allowance  set  aside  on  a  mere  general 
averm  mt  of  newly  discovered  evidence.  In  such  a  case  it  is  not 
suffl  nent  to  allege  ignorance  at  the  time  of  allowance,  but  the 
plaintiff  must  go  further,  and  show  that  he  could  not,  with  the 
use  of  due  diligence  on  his  part,  have  ma  le  himself  acquainted 
with,  or  ascertained  the  existence  of  the  facts."*  A  decjlaration 
on  a  promise  made  by  the  defendant  as  administrator  must 
aver  assets  in  order  to  charge  him  personally  de  bonis  propriis.^ 
In  Louisiana,  an  action  brought  by  a  creditor  of  a  testator 
against  his  executor,  charging  him  with  a  devastavit,  without 
averring  proceedings  to  compel  the  defendant  to  exhibit  a  table 
of  distribution,  can  not  be  maintained.^    A  complaint  against 

*  Whitmore  v.  San  Francisco  Sav-  thereon,   was  attaohed  to   the  com- 
ings  Uiii'>n,  50    Gal.    14').    See  alao  pi  <int,  was  heM  sufficient. 
Sichpl  V.  Carrillo.  42  Id,  40  5.  *  Uewilt  v.  Schooumaker,  2  Johns. 

«  Ellissen  v.   IlHlleck,   6  Cal.   393;  243 

Fa^kner  v.  Folsom.  Id.  412;  LI.-nt<ch  *  Williams  v.  Price.  11  Cal.  212. 

V.  Pt.rtPr,  10  Id.    558;   Fallon  v.  But-  »  Adams  v.  Whiting,  2  Craiieh  C.  CL 

ler,  21    Id.  24;  Ellis  v.  Polhomus,  27  132.     As  to  sufficiency  of  complaint 

Id.    854;  Benedict  v.   Haggin,  2  Id.  a^^ninst  executrix,  in  her  own  wrong, 

886;  Janin  v.  Browne,  59  Id.  37.     In  which  did  not  charge  her  as  such,  see 

this   latter    case,  a    complaint    that  Harper  v.  West,  1  Cranch  C.  Ot.  192; 

alleged  that  the  claim  sued  upon  was  or  of  one  which  did  not  show  hy  whom 

presented  to  the  administrator  within  the    lettf-rs  are  granted:    Cawood  v, 

the  time  limited  in  the  notice  to  cred-  Nichols.  1  Id.  180. 

itors,  and  a  copy  of  the  claim  pre-  •  McGill  V.  Armour,  11  How.  D.  S» 

sented,  with  the  verification  annexed,  142. 
together     with     the      iudorsemeuts 


244  FORMS  OF  COMPLAINTS.  §  434. 

executors  seeking  to  charge  them  in  their  representative  capacity 
can  not  be  sustained  on  dcinmrer,  if  the  fads  alleged  show  only 
a  personal  liability  on  their  part.^  If  the  defenilant  is  described 
in  the  caption  of  the  complaint  as  adminisiruior,  it  is  immaterial 
so  long  as  the  facts  stated  in  the  body  of  the  complaint  show 
he  is  not  sought  to  be  charged  as  administrator.^ 

In  an  action  against  executors,  plaintiff  maj',  to  save  the  stat- 
ute of  limitations,  lay  the  promise  as  made  by  the  representa- 
tive.' A  complaint  which  alleges  a  promise  by  deceased,  and 
also  a  promise  by  his  administrators,  though  informal,  is  not 
bad  on  general  demurrer,  if  it  appears  that  defendants  are 
charged  in  their  representative  capacity.'*  Where  the  coiiii)laint 
did  not  state  that  the  promises  were  made  in  the  testator's  life- 
time, nor  to  him,  nor  for  an  indebtedness  to  him,  nor  to  them 
as  administrators,  the  action  is  in  their  individual  and  not  in 
their  representative  capacity.* 

§  434.  Torts,  Actions  of. — No  action  can  be  sustained 
against  an  executor  or  administrator  as  such  on  a  penal  statute ; 
nor  when  the  cause  of  action  is  founded  upon  any  malfeasance 
or  misfeasance,  is  a  tort,  or  arises  ex  delicto^  such  as  trespass, 
false  imprisonment,  assault  and  battery,  slander,  deceit,  divert- 
ing a  watercourse,  etc.,  when  the  complaint  imputes  a  tort  done 
to  the  person  or  goods  of  another  by  the  testator  or  intestate.^ 

§  435.  Administrator  with  Will  Annexed. — If  the  tes- 
tator appoints  an  executor  of  his  will,  and  the  executor  dies, 
and  an  administrator  with  the  will  annexed  is  appointed,  the 
administrator  with  the  will  annexed,  under  the  statutes  of  Cali- 
fornia, possesses  all  the  powers  conferred  on  the  executor  named 
in  the  will,  and  can  sell  the  land  devised  if  the  executor  could 
have  sold  it.''' 

§  436.  Action  for  Use  and  Occupation  against  Execu- 
tor.— At  the  common  law  an  executor  has  constructive  pos- 
session of  the  decedent's  goods  from  the  time  of  his  death,  and 
may  declare  on  his  own  possession  "  as  executor,"  although  in 
fact  he  never  has  had  possession.  Under  the  laws  of  California 
an  administrator  is  vested  with  the  right  to  the  possession  of 
the  real  estate  of  his  intestate  as  well  as  to  the  personal  prop- 

»  Bartlett  v.  Hatch,    17  Abb.  Pr.  «  Worden  v.  Worthinsrton,  2  Barb. 

461.  868 ;  see  Merritt  v.  8eanmn,   6  N.  Y. 

2  People  V.  Houghtaling,     7    Cal.  168. 

850.  •  8  Willinms  on  Ex.,  pp.  1728.  1729 ; 

'  VVhitnker  v.  Whitaker,  6  Johns.  People  v.  Gibbs,  9  Weud.  29;  Eustace 

112 ;  Carter  v.  Phelps,  8  Id.  440.  v.  Jahns,  38  Cal.  8. 

♦  Curtis  V.  Bowrie,    Adui'rs    of,  2  ^  Kidwell  v.  Brummagim,  32  Cal. 

McLean,  874.  436. 


§  439.  HUSBAND  AND  WIFE.  245 

erty ;  and  his  duties  and  liabilities  in  respect  thereto  are  there- 
fore of  the  same  general  character.  If  the  administrator  occu- 
pies and  uses  premises  belonging  to  his  estate,  he  becomes  at 
least  the  tenant  of  tlie  estate,  liable  in  any  event  for  the  value 
of  its  use  and  occupation  ;  and  if  he  makes  a  profit,  he  becomes 
liable  for  that  also,  at  the  election  of  the  parties  in  interest ; 
such  is  the  law  of  his  relation.  If  in  this  case  the  administra- 
tor sustains  a  loss,  the  loss  is  his,  and  the  hardship  is  no  greater 
than  a  like  result  in  the  case  of  any  other  tenant.^ 


CHAPTER     V. 
HUSBAND  AND   WIFE. 

§  437.  A^ain^t  Hisbaui  for  N3C3  3saries  Furnished 
to  Djfen.laas's  FaTixily,  without  his  Express  Request, 
at  a  Reasonable  Firice. 

Form  No.  9S. 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of ,  18...,  at  ,  he 

furnished  to  Mary  Smith,  the  wife  of  defendant,  at  her  request, 
sundry  articles  of  [food  or  clothing,  etc.],  to  wit: 

II.  That  the  same  were  necessary  to  her  maintenance,  and 
suitable  to  her  station  in  Hfe. 

III.  That  the  same  were  reasonably  worth  dollars. 

IV.  That  the  defendant  has  not  pa  d  the  same,  nor  any  part 
thereof. 

[D  KM  AND  OF  JUDOMKNT  ] 

§  438.    Against    Hisbani  for    G^ois  Furnished,  to 

Wi:"e. — To  sue  a  husband  for  goods  furnished  to  his  wife,  it 
should  be  alleged  that  the  gobiis  were  sold  and  delivered  to  him. 
If  she  were  authorized  by  the  relationship,  the  nature  and  charac- 
ter of  the  goods,  and  iiis  circumstances  to  buy  them,  they  were 
in  law  sold  to  him ;  and  averring  they  were  sold  to  her  states  no 
cause  against  him,  and  such  averments  may  be  omitted  as  mere 
evidence  and  not  ultimate  facts. ^ 

§  439.  The  Same— Husband,  when  Liable. — If  a  husband 
fails  or  refuses  to  provide  a  support  for  his  wife,  the  law  au- 
thorizes her  to  purchase  from  others  on  the  credit  of  her  hus- 
band, whatever  is  necessary  for  her  maintenance,  and  suitable 

1  Walls  V.  Walker,  37  Cal.  424.         «  Jacobs  v.  Scott,  53  Cal.  74. 


246  FORMS  OF  COMPLAINTS.  §  440. 

to  her  station  in  life.^  It  is  not  necessary  to  allege  that  the 
wife  acted  as  the  husband's  agent,  or  with  his  consent.  In 
nine  cases  out  of  ten,  these  averments  would  be  fictions  of  law, 
which  must  never  be  pleaded  under  the  code.  The  husband  is 
liable  in  the  proper  cases,  although  he  had  expressly  forbidden 
the  plaintiff  to  trust  bis  wife.^  . 

§  440.  The  Same— Husband,  when  not  Liable. — A  wife 
who,  without  cause,  and  against  her  husband's  will,  refuses  to 
live  with  him,  can  not  bind  him  for  necessaries  to  a  third  party, 
who  knows  that  she  is  not  living  with  her  husband,  and  who 
sells  to  her  without  further  inquiry.^ 

§  441.  Against  Husband  and  Wife  for  Goods  Sold,  for 
her  Separate  Estate. 

Form  No.  94.* 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That    between   the  day  of ,    18...,   and   the 

day  of ,  18...,  at  ,  the  plaintiff  sold  and 

delivered  to  the  defendant,  A.  B.,  who  was  then,  and  still  is, 
the  wife  of  the  defendant,  C.  B.,  materials  used  for  the  build- 
ing of  a  house  for  her,  upon  and  for  the  benefit  of  her  separate 

lands   and  premises,  situated  in   the  town  of ,  in  the 

county  of ,  bounded  and  described  as  follows:  [De- 
scribe the  premises.] 

II.  That  the  said  defendant,  A.  B.,  in  consideration  thereof, 
then  and  there  promised  the   plaintiff  that  she  would   pay  for 

the   same dollars,  out   of  her   separate   property,  and 

did  agree  and  intend  that  the  same  should  be  paid  for  out  of 
her  separate  property. 

III.  That  said  materials ,  are  reasonably  worth  the  said  sum 
of dollars,  and  that  no  part  thereof  has  been  paid. 

IV.  That  plaintiff  further  alleges,  on  information  and  belief, 
that  the  premises  above  mentioned  and   described,  were,  at  and 

before  the  day  of ,  18...  [date  of  marriage],  since 

have  been,  and  now  are,  her  sole  and  separate  property,  and 
the  same  are  worth  about dollars. 

Wherefore  the  plaintiff  demands  judgment. 

1.  That  the  separate  property  aforesaid  be  charged  with  the 

payment  of  the   said   sum   of dollars,  with  interest 

from ,  together  with  the  costs  of  this  action. 

iGallHnd  v.Galland,  38  Cal.  265.  *  This    form   is  applicable   to  New 

*  Rent's  Com.  H8 ;  Sykes  v.   HhI-  York    and    some    other   states.     The 

steinl,  1  Sandf.  483;  Oiil.  0.  (\,  sec.  174.  followintr.  Form  No.  95,  is  adapted  to 

3  Brown  V.    Mudj^ett,    40   Vt.    68;  the  practice  in  California. 

Cal   Civil  Code.  sec.  175. 


S  445.  HUSBAND  AND  WIFE.  247 

2.  That  the  said  property  be  applied  to  the  payment  of  the 
same. 

3.  That  a  trustee  be  appointed  to  take  possession  of  her  said 
separate  property,  and  dispose  of  it,  or  of  so  much  thereof  as 
shall  be  necessary  to  satisfy  the  same. 

§  442.  Against  Husbaud  and  Wife  for  Goods  Sold  to 
the  Wife  for  her  Separate  Estate. 

Form  No.  95, 

[TiTLB.] 

The  plaintiff  complains  of  the  defendants,  and  alleges: 

I.  That  between  the    day   of  ,  18...,    and  the 

day  of ,  18...,  at  ,..,  the  plaintiff  sold  and 

delivered  to  the  defendant,  A.  B. ,  who  then  was  and  still  is  the 
wife  of  C.  B.,  at  her  request,  materials  used  for  the  building  of 
a  house  for  her,  upon  and  for  the  benefit  of  her  separate  lands 
and  property. 

II.  That  said  materials  were  of  the  agreed  price  and  value  [or 

were  reasonably  worth  the  sum]  of dollars,  and  that  no 

part  thereof  has  been  paid. 

Wherefore  the  plaintiff  demands  judgment  against  the  defend- 
ants for  the  said  sum  of   dollars,  and  interest  thereon  from 

the day  of ,  18  ...,  and  costs  of  suit. 

§  443.  Charging  Separate  Estate. — A  complaint  under 
the  New  York  practice,  which  directly  alleges  that  the  note  was 
given  by  her  for  the  express  purpose  of  charging  her  separate 
estate  with  its  payment,  is  sufficient  on  demurrer.^  So  it  seems 
a  complaint  seeking  to  charge  the  separate  estate  of  the  wife  is 
bad,  if  it  does  not  set  forth  the  property  and  the  nature  of  her 
interest.'^ 

§  444.  Common  and  Separate  Property  Equally  Lia- 
ble.— The  separate  property  of  the  wife,  and  the  common  prop- 
erty of  both  husband  and  wife,  are  equally  liable  for  the  debts 
of  the  wife  contracted  before  marriage. ^  The  statute  changes 
the  common-law  rule  on  this  subject.  In  an  action  against  the 
husband  and  wife,  on  a  sole  debt  of  the  wife  contracted  by  her 
before  marriage,  a  judgment  may  be  rendered  to  be  collected  oat 
of  the  common  property  of  botii  husband  and  wife.'* 

§  445.  Consideration. — If  the  debt  is  contracted  for  the  ben- 
efit of  the  wife,  or  of  her  estate,  no  allegation  of  an  intent  to 

>  Yale  V.   Dpderor,  18    N.  Y.    2R5;  »  Van  Maren   v.  Johnson,    15  Cal. 

Francis  v.  R..ss    17    How.    Pr.  6bl ;  813. 

Ihillipsv.  HMiradon,  12  Id.  17.  «  Vlautin  v.  Bumpus,    85   Cal.  214; 

*  Mallon  V.  Vanderhevden.  .S  Barb,  see  Civ.  Code,  c.  8,  Liusbandand  VVife^ 

Ch  0;  Dveitv.N.  A.  C.  Co.,  20  Wend.  sees.  158,  lb7,  171. 
570 ;  8eiu>n  v.  Fleet,  6  Abb.  Pr.  8. 


248  FORMS  OF  COMPLAINTS.  §  446. 

charge  it  on  the  estate  is  necessary.^  Thus  where  the  wife  exe- 
cutes a  note,  although  as  surety,  such  intent  need  not  be  averred ; 
it  is  presumed  from  her  signing  an  express  contract  in  writinc/.^ 
In  New  Yorlc,  if  the  consideration  were  not  for  the  benefit  of  the 
yrife  or  her  estate,  this  allegation  is  necessary. ^  The  agreement 
charging  her  estate  must  be  in  writing ;  but  this  is  not  necessary 
to  be  alleged.* 

§  446.  Alleging  Coverture.— The  fact  of  coverture  has 
ceased  to  have  any  relation  to  the  technical  right  of  maintain- 
ing an  action  by  a  married  woman  in  respect  to  her  separate 
property,  and  the  allegation  of  coverture  in  the  complaint  is 
not  necessary. 5 

§  447.  Demand  and  Form  of  Judgment.  —To  charge  the 
separate  estate  of  a  wife  in  an  equitable  action  in  New  York, 
the  demand  must  be  as  in  this  form.^  But  there  is  no  differ- 
ence in  the  form  of  judgment,  though  the  execution  is  re- 
stricteil.' 

§  448.  Estate  must  be  Shown. — The  complaint  must 
show  what  the  estate  is,  and  what  is  its  value. ^  But  such  is  not 
the  practice  in  California;  for  in  this  state  the  complaint  need 
not  set  out  any  separate  property  of  the  defendant,  because 
the  wife  was  liable  in  personam  before  coverture,  and  under 
our  statute  continues  so  after  marriage. ^ 

§  449.  For  Benefit  of  her  Separate  Lands. — The  weight 
of  the  decisions  is,  that  the  acts  relative  to  the  rights  and  lia- 
bilities of  married  women  in  New  York,  enlarged  only  the 
power  of  married  women  to  hold  and  convey  their  separate 
estate,  but  did  not  operate  to  subject  them  to  new  remedies  on 
their  personal  contracts. ^"^    Under  the  California  code  she  may 

1  Yale  V.  Dederer,    18   N.  Y.  273,  see  Sexton  v.  Fleet,  6  Abb.  Pr.  8;  S. 

284.  2S.5.  (J..  15  How  Pr.  10). 

«  Williams  v.  Urmgton,  85  Ohio  St.        «  Sexton  v.   Fl.-et,  6  Abb.  Pr.  9;  S. 

296;   Phillips  v.  Graves,  20  Id.  371;  C,  15  How.  Pr.  106;    Cobine    v.  St. 

Averv  V.  Vansickle,  35   Id.   270;  Lil-  John,  12  Id.  386. 
lard  V.  Turner,  16  B.  Mon.  374;   Dob-        »  Bo^tic   v.  Love,   16    Cal.  69;  see 

bin  V.  Hubbard,  17  Ark.  189;    Patton  also  Foote  v.  Morris,    12  N.  Y.  Leg. 

V.  Kinsman,   17  Iowa,  428;  Boarman  Obs.  61. 

v.  Groves,  23  Miss.  280;    During   v.        i"  Francis  v.  Ross,  17  H-w.  Pr.  561 ;  • 

Boyle.   8    Kans.    625;     Metropolitan  Gates  v.    Brower,   6   N.    Y.  (5   Sell. 

Bank  V.  Tavlor,  62  Mo.  3:!8.  205:  Switzer  v.    Valentine,  4   Duer ) 

8  Yalev.  t)ederer,  16  N.  Y.  281.  96;  Cobine  v.  St.  .J..hn,  12   How.   I'r. 

«  Yale  V.  Dederer,  22  N.  Y.  450.  3«3;   Coon  v.   Br..<ik,    21    Burh.   646. 

*  Peters  T.  Fowler,  41  Barb  467.  For    other   moties   of    pleiulmij.     see 

•  Cobine  V.   St.  John.    12  How.  Pr.  Coster  v.    Isaat-s,    16    Abb    Pr.  328; 
833;  Coon  V.  Brook.  21  B.irb.  646  Bibiwin   v,   Kininiel,  Id.  858;  Young 

'L«w8  New    York,    lHo3.   p.    1057.  v.  Gori,  13   Id.   18,    note;   Thonipson 

For  form  of  complaint  on  a  note  in-  v.    Sargent,    15    Id.   4-52;   Aitkeu    V. 

dorsed  by  the  wife,  while  sole,  before  Clark,  16  Id.  328,  aote. 
the  delivery  of  the  note  to  the  payee, 


§  456.  HUSBAND  AND  WIFE.  249 

make  herself  liable  without  specially  charging  her  separate 
estate.^ 

§  450.  Homesteacl. — A  complaint  by  husband  and  wife  to 
recover  the  homestead  conveyed  away  by  the  deed  of  the  hus- 
band alone,  must  aver  either  that  the  premises  were  occupied 
as  a  homestead  at  the  date  of  the  conveyance,  or  that  they  had 
not  been  previously  abandoned. ^  So  a  married  woman  can  not 
alone  convey  away  the  homestead.* 

§  451.  Marriage. — A  marriage  de  facto,  although  not  legally 
soleiHiiized,  is  sufficient  at  common  law  to  render  the  husband 
liable  for  the  previously  contracted  debts  of  the  wife.^  It  is 
not  material  whether  the  marriage  was  solemnized,  if  the  par- 
ties afterwards,  and  after  the  passage  of  the  act,  resided  and 
acquired  the  property  here.^ 

§  452.  Misjoinder  of  Causes  of  Action. — Claim  for  per- 
sonal jud'jjinent  against  husband,  and  enforcement  of  a  lien 
against  wife's  separate  estate,  are  incompatible.^ 

§  453.  Promise  of  Married  Woman. — In  New  York,  in 
an  action  to  charge  the  separate  estate  of  a  married  wo;nan 
upon  her  promise,  it  is  necessary  that  the  complaint  allege 
either  that  the  consideration  of  the  projnise  was  for  the  benefit 
of  the  estate,  or  that  she  intended  to  charge  such  estate.''' 

§  454.  Property  Liable  for  Debts  of  Wi/e. — The  sepa- 
rate property  of  the  wife  is  liable  for  her  debts  contracted 
before  marriage,  and  the  separate  property  of  her  hushand  is 
not.s  The  interest  of  the  wife  in  the  common  property  is  a 
mere  expectancy,  like  the  interest  which  an  heir  may  pusoess  in 
the  property  of  his  ancestors.^ 

§  455.  The  Same — Property  Owned  before  Marriage. — 
The  complaint  is  not  demurrable  for  omitting  to  desiofuate  the 
wife's  separate  property,  which  by  the  statute  law  of  New  York, 
1853,  is  alone  bound  by  the  juilgraent  in  such  case.^" 

§  456.  Rent. — Where  husband  and  wife  are  sued  for  rent 
claimed  on  a  lease  made  by  plaintiff  to  the  wife,  plaintiff  and 

*  Sep  chapter  3.  Civil  Codft.  *  Pnlen  v.  Lent,  f)  T?os\v.  713 ;  Francis 
«  Harper  v.  Forbes,  15  C«l.  202.            V.  R.)*s,  17  How.  Pr.  5*il. 

»P..ole  V.  G.-rard,  6  Cal.78.  «  Cal.  Civil  Code,    sec.    170;     Van 

♦  Norwood  V.  Stevenson,   And r.  227,  Maren  v.  Johnson.     5  ChI.  311;   Van- 
2'28;     ll'bin>on  v.  Nahon,    1    Camp,  deriieyden  v.  Mallorv,  1  Conist.  J72. 
245;    Watson  V.  Threlkeld,  2  E8p.^i37.  »  Van    Maren    v.    .Johnson.     15  Cal. 

*  Uve  V.  Dve,  11  Cal.  1H3;  see  Peo-  811  ;  Guioe  v.  Ltwrence,  2  La.  An. 
pie  v!  Anderson,  26  1(1.129;  Grahaoi  21Q',  see  also  Packard  v.  Arellanes, 
V.  Bennett,  2  Id.  503;  Letters  v.  Cady,  17  Cal.  687;  Vlaniin  v.  Bumpiis,  36 
10  Id.  538.  Id.  214. 

•  Palen  V.  Lent,  5  Bosw.  713;  Sex-  "  Foote  v.  Morris,  12  N.  Y.  Leg. 
ton  V.  Fleet,  2  Hilt.  477.  Obs.  til. 


250  FORMS  OF  COMPLAINTS.  §  457. 

the  wife  being  tenants  in  common  of  the  property,  it  was  held, 
that  the  wife  can  be  liable  only  as  s<ile  trader  under  the  statute; 
and  that  the  complaint  must  aver  facets  requisite  to  establish 
her  liability  in  that  character,  and  that  the  allegation  tliat  she 
"  was  doing  business  as  a  feme  aole,  with  the  consent  of  her 
husband,"  is  insufficient.' 

§  457.  Sale  and  Delivery.— The  complaint  must  allege  a 
sale  for  the  benefit  of  such  estate.*  Alleging  a  sale  and  deliv- 
ery to  the  husband,  instead  of  alleging  a  sale  and  delivery  to 
the  wife  on  the  faith  of  or  for  the  benefit  of  her  separate  estate, 
is  not  8ufl[icient.3  Merely  alleging  a  sale  on  the  credit  of  her 
estate,  is  insufl^cient  on  demurrer.* 

§  458.  Separate  Property. — Tn  an  action  against  husband 
and  wife  to  recover  antenuptial  debts,  the  complaint  need  not 
designate  wife's  separate  property."  Where  the  complaint  does 
not  aver  that  the  purchase-money  paid  for  land  bought  in  the 
name  of  the  wife  was  her  separate  property,  the  presumption 
is  tiiat  it  is  common  property.^ 

§  459.  Sufficient  Averment. — Where  the  complaint  in  an 
action  upon  the  contract  of  a  married  woman  alleged  that  the 
property  sold  was  for  the  use  and  benefit  of  the  wife,  that  it 
was  purcliased  at  her  special  instance  and  request,  and  used  in 
and  about  her  premises,  it  is  a  sufficient  averment  of  a  coutiact 
made  with  the  wife  in  relation  to  her  sei^arate  property.' 

§  460.  Against  Husband  and  Wife  on  Note  by  Wife 
while  Sole. 

Form  No.  96. 
[Title.] 

The  plaintiff  complains  of  the  said   C.  D.   and  E.,  his  wife, 

the  defen'lants,  for  that  the  said  E.,  heretofore,  whilst   she  was 

sole   and   unmarried,  on  the  day   of  ,   18...,  at 

[place  of  date],  made  her  certain  promissory  note  in  writing  of 

tliat  date,  and   then  and  there  delivered   the  same   to  tlie  said 

plaintiff,   and  tliereby  promised,  by  her  then  name  of  E.  F.,  to 

pay  to  the  said  plaintiff,  or  order,  tlie  sum  of  $  in  

after  the  date  thereof;  and  the  said  E.  F  ,  has  since  intermarried 

with  the  said  C.  D. ;  yet  the  said  defendants  have  not,  nor  hath 

either  of  them,  paid  the  said  sum  of  money,  or  any  part  thereof, 

to  the  said  plaintiff. 

*  Aiken  v.  Davis,  17  Cal.  lift.  »  Foote  v.  Morris,  12   N.    Y.  Leg, 

«  Kass  V.  BoMn.  16  U..W.  Vt.  93.  Ob-.  HI. 

'Arnold  v.  Riiriiold,  16    How.  Pr.         •  Allh<«l  v.  Conhoim,  8S  ChI.  230. 
158.  "f  Muubur  v.  Hubait,  U  luwa,  2J8b 

♦JBaes  v.Bean,  16  How.Pr.9a. 


§  464.  HUSBAND  AND  WIFE,  251 

Wherefore  the  said  plaintiff  prays  judgment   against  the  said 

defendants   for   the  said   sum  of  $  ,  together  with  interest 

thereon  from  the  day  of ,  18...,  and  costs  of  suit. 

§  461.    By  a  Married  Woman. 

Fonn  No.  97, 
[TlTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on   the day  of ,  18...,  at , 

the  plaintiff  intennarried  with  one  A.  B.,  whose  wife  slie  now  is. 

II.  That  on  the day  of ,  18...,  at , 

the  defendant  made  his  promissory  note  payable  to  tlie  plaintiff 

for  the  sum  of dollars,  and  which  note  is  in  words  and 

figures  as  follows:    [Copy  note.] 

III.  That  the  consideration  of  the  said  note  was  the  payment 

by  this  plaintiff  to  the  maker  thereof   of  the  sum  of 

dollars,  which  said  sum  was  at  and  before  the  time  of  her  mar- 
riage owned  by  her,  and  thereafter  was  her  sole  and  separate 
property,  and  so  continued  until  the  date  the  said  note  became 
due,  and  that  said  note  thereupon  became  and  ever  since  has 
remained  her  sole  and  separate  property  [or  otherwise,  accord- 
ing to  the  circumstances,  showing  it  to  be  her  separate  estate]. 

[Dkmanu  of  Judgment.] 

§  462.  Division  of  Common  Property. — Tn  an  action  for 
the  division  of  the  common  property  of  husband  and  wife,  after 
a  decree  of  divorce,  the  plaintiff,  to  bring  herself  within  the 
provisions  of  the  act  "defining  the  rights  of  husband  and  wife," 
passed  April  17,  1850,  must  affirmatively  state  such  facts  as  give 
her  the  right  to  the  property  un<ler  the  act.^ 

§  463.  Marriage,  Averment  of. — Where  the  plaintiff 
averred  in  her  complaint,  in  a  suit  brought  for  her  distributive 
share  of  the  estate  of  an  alleged  deceased  husband,  tiiat  the 
deceased  made  proposals  of  marriage  to  her,  when  she  accepted, 
and  consented  to  live  with  him  as  his  true  and  lawful  wife ;  and 
that  in  accordance  with  his  wishes  she  henceforth  lived  and  co- 
habited with  him  as  his  wife,  always  conducting  herself  as  a 
true,  faithful,  and  affectionate  wife  should  do,  it  was  held  that 
these  were  insufficient  averments  of  tlie  existence  of  a  marriage, 
and  that  the  facts  averred  were  only  prima  facie  evidence  of  a 
marriage.^ 

§  464.  Mortgage. — It  is  immaterial  whether  a  conveyance 
to  the  wife  was  made  with  or   without  a  fraudulent  intent;  in 

>  Dyp  V.  Dye,  11  Cal.  163;  see  Johnson  v.  Johnson.  Id.  200. 

«  Letters  v.  Cady,  10  Cal.  5o3 ;  see  People  v.  Anderson,  26  Id.  129. 


252  FORMS  OF  COMPLAINTS.  §  465. 

either  case  it  is  unavailing  aga'nst  the  mortgage,  bocause  the 
inference  frona  the  language  of  the  complaint  that  the  convey- 
ance was  upon  purchase  and  during  marriage,  and  consequently, 
that  the  property  was  common  property,  is  not  negatived  by 
any  averment  that  the  property  was  transferred  to  her  before 
marriage,  or  was  a  gift  to  her,  or  in  exchange  for  her  separate 
propeity.^ 

§  465.  Mortgage  of  Separate  Property. — Where  a  wife 
sought  relief  by  a  bill  in  chancery  from  a  mortgage  of  her  sepa- 
rate property,  it  was  no  objection  to  the  bill,  as  a  rule  of  pleading, 
that  a  husb:»nd  was  made  a  party  to  it  with  the  wife.  He  acts  only 
as  her  prochein  ami.^ 

§466.  Separate  Property  of  Wife.— The  law  of  Califor- 
nia provides  that  all  property  owned  by  the  wife  befoie  her 
marriage,  or  after  marriage,  acquired  by  gift,  bequest,  devise, 
or  descent,  shall  be  her  separate  estate ;  ^  the  law  in  this  respect 
being  similar  to  that  of  Texas  and  Louisiana.*  A  general  aver- 
ment that  the  property  is  the  separate  property  of  the  married 
woman,  is  not  bad  on  demurrer.^ 

§  467.  Services  of  Wife  before  Marriage. — The  htisband 
is  properly  joined  with  the  wife  in  an  action  for  services  performed 
by  her,  and  the  action  brought  therefor,  previous  to  marriage. ^ 

§  468.  When  Husband  may  Join. — When  a  married 
woman  is  a  party,  her  husband  must  be  joined  with  her,  except 
in  special  cases.'''  And  even  in  these  special  cases  it  is  not  obli- 
gatory on  the  wife  to  sue  alone.® 

§  469.  When  She  may  Sue  Alone. — In  actions  concern- 
ing her  separate  estate,  she  may  sue  alone,  as  if  slie  were  a 
feme  sole.^  So  in  Illinois,  under  the  act  of  1861,  p.  24.^"  So, 
also,  in  New  York,  under  the  code  of  procedure,  section  114. 
Under  the  new  code  of  procedure  in  New  York,  section  450,  a 
married  woman  appears,  prosecutes,  or  defends  alone  or 
joined  with  other  parties,  as  if  she  were  single.  So,  also, 
by  the   laws   of  Pennsylvania.^*     So,    also,    under  the  laws  of 

^  Knhnpr  v.  Ashennner,  17  Cal.  578.  •  Van  Maren  v.   Johnson,   15   Cal. 

«  Bnin  v.  Heath,  6  How.   U.  S.  228.  810. 

'Civil  Code,  sec.    1H2;    Meyer  v.  '  Code  C.  P.,  sec.  870. 

Kinzer,  12  Cal.  251;  Smith  v.  Smith,  ^  Van  Maren  v.  Junhson,  15  Cal. 

Id.  224.  810. 

«  Hu-iton  V.  Curl,  8  Tex.  242 ;  Chap-  »  Code  C.  P.,  sec.  870. 

man  V.  Allen,  15  Id.  278;  Claiborne  v.  ^^  See  Emeison   v.  Clayton,  82  111. 

Tanner,  18  Id.  69;  Dominguezv.  Lee,  493. 

17  La.   290;  Fisher  v.  Gordv,  2  La.  ^  See  Goodyear  v.  T'lmbuigh,  18 

An  7tJ3;  Webb  v.  Peet,  7  Id.  92.  Pa.  St.  480;  Cummii  ts' App..' 11  Id. 

'  Spies  V.  Acce8«>ry  Tratisit  Co..  5  275;  Sheidle  v.  Wei-;!  lee,  I  >  Id.  1H4; 

Duer,  t)G2;  Lippuiaa  V.  Pelersburgh,  Long's  Adni'r  v.  "Whie'a  Adiu'r,  5  J. 

10  Abb.  Pr.  254.  J.  Marsh.  230. 


§  473.  HUSBAND  AND  WIFE.  253 

Texns.'  A  married  woman  may  sue  alone  in  actions  against 
her  husband^ 

§  470.  When  She  can  not  Sue  Alone. — The  wife  can  not 
brii  g  suit  in  her  own  name  on  a  contract  which  the  law  does  not 
authorize  her  to  make.^  Nor  to  recover  the  homestead.* 
Nor  for  damages  for  a  personal  injury. ^  The  question  of  the 
rights  of  married  women  is  regulated  by  the  statutes  of  the 
aevt'ral  states.  Hence  the  authorities  referred  to  have  little 
application,  except  in  the  states  where  such  laws  are  in  force, 
or  the  decisions  were  made.  In  Illinois,  whenever  a  wife  joins 
with  her  husband,  her  interest  must  appear.* 

§  471.    Against  a  Married  Woman,  as  Sole  Trader. 

Foi-m  No.  98. 

[TiTT.K.] 

The  pla'ntiff  complains,  and  alleges: 

I.  That  the  defendant  is  the  wife  of  one  A.  B, 

II.  Tliat  on  the  ..  day  of ,  by  a  decree  of  the 

county  court  of  the  county  of  ,  in  tliis  state,  the  de- 
fendant was  decreed  a  sole  trader ;  and  at  the  time  of  making 
the  note  hereafter  mentioned,  the  defendant  was,  and  still  is,  a 
sole  trader,  carrying  on  business  as  at  

III.  That  on  the  day  of ,  18...,  at , 

the  plaintiff  sold  and  delivered  to  the  defendant,  at  her  request 

of  the  value  of dollars,  which  were  used  by 

the  defendant  in  her  said  business,  as  sole  trader. 

IV.  That  in  consideration  thereof,  the  defendant,  as  sole 
trader,  made  her  promissory  note,  of  which  the  following  is  a 
copy.     [Copy  note.] 

V.  That  she  has  not  pnid  the  same. 

[Demand  of  Judqmknt.] 

§  472.  Separate  Property. — The  letters  received  by  a  mar- 
ried woman  from  her  first  and  second  husband,  before  her  mar- 
riage with  the  latter,  are  her  separate  property — like  jewels — and 
her  gift  of  them  to  her  daughter  is  valid  as  against  her  husband.''' 

§  473.  Sole  Trader. — A  complaint,  in  an  action  to  recover 
a  debt  from  a  married  woman,  which  charges  that  she  is  a 
sole  trader  under  the  statute,  is  sufBeient,  without  any  aver- 
ment of  facts   showing   that  the   debt  was    contracted  in   the 

*  Mclntire  v.  Chnppell,  2  Tex.  378;  fornia  Code  Civil  Procedure,  sec.  370, 
O'Brion  V.  Hilburn,  9  Id.  297.  Bubd.  1. 

«  Kashaw  v.  Kashaw.  3  Cal.  312.  *  Sheldon  v.  Uncle  Sam,  18  Cal.  526. 

»  Snyder  v.  Webb,  3  Cal.  83.  «  2  Black.  1236. 

*  Poole  V.  Gerrard.  6  Cal.  71 ;  Guiod  ''  Qrigsbj  V,  Breckinridge,  2  Bush, 
V.  Guiod,   14  Id.  500 ;  but  see  Call-  480. 


264  FORMS  OF  COMPLAINTS.  §  474. 

particular  business  which  she  had  declared  her  intention  to 
carry  on.^ 

§  474.  Sole  Trader,  Averment  of. — An  averment  in  the 
complaint  that  the  defendant,  a  married  woman,  wlio  carried 
on  a  separate  business,  represented  at  the  time  of  mailing  the 
contract  that  it  was  for  the  use  of  such  business,  is  sufficient 
on  demurrer.*  If  the  contract  was  not  in  fact  for  the  uses  of 
such  business,  it  should  appear  by  way  of  defense.^ 

§  475.    The  Same,  on  Contract  Generally. 

Form  No.  99. 

[TlTLB.] 

The  plaintiff  complains,  and  alleges : 

I.  [State  marriage  as  in  previous  form.] 

II.  [State  cause  of  action.] 

III.  Tliat  the  property  hereinbefore  mentioned  was  acquired 
by  her  as  sole  trader,  and  has  ever  since  been  her  sole  prop- 
erty. 

[Demand  of  Judqmknt.] 

§  476.  Facts  to  be  Alleged.—  By  the  docisions  of  the 
courts  in  New  York,  it  seems  tliat  it  is  still  necessary,  in  an 
action  against  a  married  woman,  to  allege  in  the  complaint  the 
facts  creating  her  peculiar  liability,  for  an  act  relating  to  her 
separate  estate,  or  relating  to  trade  carried  on  by  her  for  her 
own  benefit.* 


CHAPTER  VI. 

INFANTS. 

§  477.    By  an  Infant,  Suing  by  General  Guardian. 

Foi-m  No.  100, 

[Title.] 

A.  B.,  an  Infant,  by  0.  D.,  his  Guar-") 

dian,  PlHinlitf,  [ 

against  f 

E.  F.,  Defendant.  J 

The  plaintiff  complains,  and  alleges: 

I.  Tliat  he  is  under  the  age  of  twenty-one  years. 

II.  That  on  the  day  of ,  18...,  at 

the  above-named  C.  D.   was  duly  appointed  by  the 


»  Mplcher  v.  Kuhland,  22  Oal.   628.  N.  Y.  604 ;  and,  less  fully,  Id.,  25  How. 

«  Center  V.  Isaacs,  16  Abb.  Pr.  828.  Pr.  483. 

•  Coster  V.  Isaacs,  16  Abb.  Pr.  828.  ♦  Diokerman  v.  Abraliains,  21  Barb. 

For  the  substance  of    a    complaint  651 ;  Baldwin  T.  Kimuiel,  16  Abb.  Pr. 

avcainst    a   married   woman    as    sole  853. 
trader,  see  Guulding  v.  Davidson,  26 


§  481.  INFANTS.  255 

court  of  the county,  state  of  California,    guardian  of 

the  property  and  person  of  the  plaintiff. 

m.   [State  the  cause  of  action,] 

[Dkmand  of  Judqmint.] 

§  478.    By  an  Infant,  Saing  by  Quardian  ad  Litem. 

Form  No.  101, 

[TrTT.K.] 

A.  B.,  an  Infunt,  byC.  D.,  his  Guar-  '\ 

dian  ad  litem,  Plaintitf,  / 

against  ( 

E.  F..  Defendant  y 

The  plaintiff  complains,  and  alleges  t 

I.  That  he  is  under  the  age  of  twenty-one  years,  to  wit,  of 
the  age  of  years. 

II.  That  on  the day  of ,  18...,  at , 

the   above-named   C.  D.  was   duly   appointed  by  the 

court  of  the  county  of ,  state  of  Califoinia,  the  guardian 

of  the  above-named  A.  B.,  for  the  purposes  of  this  action. 

III.  [State  the  cause  of  action.] 

[Demand  of  Judgment.] 

§  479.  Actions  by  or  against  Infants  should  be  brought 
in  the  name  of  their  general  guardian,  or  by  their  guardian  ad 
litem. ^ 

§  480.  Appointment  of  Guardian. — "Where  the  will  ap- 
points a  guardian,  there  is  no  necessity  for  any  letters  of  guar- 
dianship.^  The  court  has  no  right  to  appoint  a  guardian  ad 
litem,  for  an  infant  defendant,  till  the  defendant  is  properly 
brought  before  the  court.^  But  where  his  interests  require  it, 
the  court  will  appoint  such  a  guardian  even  though  the  minor 
may  have  a  general  guardian.*  The  provisions  of  sections  9  and 
10  of  the  California  Civil  Practice  Act  (Code,  372,  373),  relative  to 
the  appointment  of  guardians  ad  litem,  where  infants  are  parties, 
only  apply  where  there  is  no  general  guardian,  or  where  he  does 
not  act.5 

§  481.  Appointment,  how  and  when  must  be  Alleged. 
In  New  York,  where  the  plaintiff  is  an  infant  suing  by  guar- 
dian, the  complaint  shall  contain  an  allegation  of  the  appoint- 
ment of  the  guardian,  and  it  should  be  stated  in  a  traversable 
form.^    Such  appointment  must  be  alleged  with  certainty  as  to 

1  Cal.  CodsCiv.  Proc,  sec.  372;  N.  »  Fox  v.  Minor.  32  Cat.  119;  Spear 

Y.  Code  (1877),  sec.  469.  v.  W-ird,  20  Id.  676. 

«  Norris  v.  HKrris,  16  Cal.  255.  •  Halbert  v.    Youns:,  13  How.   Pr. 

•Gray  v.  Palmer,  9  Cal.  616.  414;    Grantraan  v.  TUrall,  44    Barb. 

*  Gronfier  v.  Puymirol,  19  Ual  929 ;  173 ;  see  aUo  Stanley  v.  Chappell,  8 

Em<Tio  V.    Alvarado,  1  West  Coast  Cow.  236. 
Bep.  708. 


256  FORMS  OF  COMl'LAINTS.  §  482. 

time,  place,  and  power  of  the  appointment.*  But  an  allegation 
that  the  appointment  was  made  on  the  plaintiff  's  application  is 
implied  by  the  averment  that  the  guardian  was  "duly  ap- 
pointed."* When,  however,  a  com |)laint  was  entitled,  "J.  G., 
by  J.  G.,  his  Guardian,  v.  G.  T.,"  and  commenced  thus:  "  The 
plaintiff,  complaining,  states,"  etc  ,  but  contained  no  allogation 
that  the  plaintiff  was  an  infant,  under  the  age  of  twenty -one 
years,  or  that  the  guardian  was  appointed  by  any  court,  it  was 
held  bad  on  demurrer,  for  the  reason  that,  while  it  showed  that 
the  plaintiff  appeared  by  guardian,  it  did  not  show  that  the  guar- 
dian was  duly  appointed,  so  as  to  authorize  such  appearance. ^ 
If  the  allegation  be  deemed  too  general,  the  objection  can  not  be 
taken  by  demurrer.  The  remedy  is  by  motion  to  make  it  more 
definite.* 

In  California,  however,  in  an  action  against  infants,  neither 
the  petition  for  the  appointment  of  a  guardian  ad  litem,  nor  the 
order  making  the  same,  need  appear  on  the  judgment  roll. 
Such  ap})ointinent  may  be  made  on  an  application  ore  tenns  in 
open  court,  as  well  as  in  writing,  and  where  the  record  is  silent 
as  to  tiie  manner  of  appointment,  the  regularity  thereof  will  be 
presumed.5 

§  482.  Actions  by  General  Guardian. — A  general  guar- 
dian can  not  sue  in  his  own  name  to  recover  money  due  the  in- 
fant. Such  actions  must  be  brought  in  the  name  of  the  infant, 
by  his  guardian. 8  In  an  action  by  an  infant,  a  general  guardian, 
designated  in  the  complaint  as  a  guardian  ad  litem,  is  of  no  im- 
porlance,  if  the  body  of  the  complaint  shows  him  to  be  a  gen- 
eral guardian.'''  In  an  action  by  a  guardian,  to  recover  from 
his  ward's  estate  for  services  rendered  in  a  suit  at  law,  it  must 
be  alleged  that  the  employment  of  the  plaintiff  was  a  reason- 
able and  proper  expense  incurred  by  the  guardian.^ 

§  483.  DisaSrmance  of  Deed. — Where  an  infant  conveys 
his  land,  and  afterwards,  on  coming  of  age,  would  avoid  the 
deed  and  recover  possession,  he  must  before  suit  make  an  entry 
upon  the  lands,  and  execute  a  second  deed  to  a  third  person, 
or  do  some  other  act  of  equal  notoriety  in  disaffirmance  of  the 

»  Stanley  v.  Chappell,  8  Cow.  235;  Hulbert  v.  Young,  13  How.  Pr.  418; 

Hulbert    V.     Young.     13    flow.     Pr.  GrantmHn  v.  Thrall,  44  Brtrb.  173. 
418.  «  S6r6  v.  Coit,  6  Abb.  Pr.  481. 

*  Polly  V.  Saratoga  and  Washington        *  Emeric  v.  Alvarado,   1  West  Coast 

B.  R.  Co.,  9  Barb.  449 ;  People  ex  rol.  Rep.  708. 

Haws  V.    Walker,   2   Abb.  Pr.  421;        «  Spear  v.  Ward,  20  Oal.  676;  Fox 

People  ex  rel.  Crane  v.  Ryder,  12  N.  v.  Minor,  32  Id.  119. 
Y.  433  '  8pearv.  Ward,  20  Cal.  676. 

*  Stanley  V.  Chappell,  8  Cow.  285;        *  Caldwell  v.  Young,  21  TeX.  800. 


§  488.  INFANTS.  257 

first  deed,  or  an  action  cnn  not  be  mnintnined.^  His  act  of  dia- 
affirinance  must  be  averred  in  tlie  pleading,  and  is  necessary  to 
be  proved.  The  want  of  this  allegation  makes  the  complaint 
falally  defective. ^ 

§  484.  Infant  Feme  Covert.— Under  the  California  stat- 
utes, the  disability  of  infancy  attaches  as  well  to  a  feme  covert 
under  age,  as  to  a  feme  sole,  subject  to  the  act  ot  1858,  p.  108, 
which  makes  married  women  under  eighteen,  and  married 
with  the  consent  of  their  parent  or  guardian,  of  full  and  lawful 
age.  3 

§  485.  Actions  by  Infants  in  Ohio  and  Illinois. — lu 
Illinois  minors  may  bring  suits  in  all  cases  whatever,  by  per- 
sons they  may  select  as  their  next  friend,  who  must  file  a  bond 
for  costs  that  may  accrue.*  In  Ohio  the  action  must  be  brought 
by  the  guardian  or  next  friend  of  the  infant, ^  who  is  liable  for 
all  costs  ^  In  a  joint  suit  by  husband  of  aye,  and  wife  a  minor, 
no  guardian  for  the  wife  is  necessary.''' 

§  486.  Partition. — Guardians  ad  litem  appointed  to  repre- 
sent an  infant  in  suits  in  partition,  have  no  power  to  admit 
away  by  their  answer  the  rights  of  the  infants,  as  it  is  not  a 
matter  within  the  scope  of  their  appointment.^  They  have 
power  to  defend  for  the  infant  solely  against  the  claim  set  up 
for  partition  of  the  common  estate.^ 

§  487.  Promissory  Notes. — ^The  promissory  note  of  an  in- 
fant is  voidable,  not  void.^" 

§  488.  Special  Obligation  of  Ancestor. — Where  the  infant 
was  sued  upon  a  special  obhgation  of  the  ancestor,  chargeable 
upon  the  inheritance,  he  might  pray  that  the  proceedings  be 
stayed  until  he  should  attain  his  majority.  This  privilege  is 
confined  to  the  heir  alone. ^^  In  Ohio  it  is  held  that  in  an  action 
against  an  infant  for  the  specific  performance  of  an  alleged  con- 
tract with  his  ancestor,  he  is  entitled  to  a  day  in  court  after 
coming  of  age  to  show  cause  against  the  decree,  and  if  an  abso- 
lute decree  be  taken  against  him,  it  will  be  error. ^^     In  the  same 

J  Bool  v.Mix.  17  Wend.  119;  Dom-  *  Ohio  Codp,  sec.  30. 

iniek  v.  Michael,  4  Sandf.  420.  •  Ohio  Code,  sec.  31. 

«  Voorhies   v.  Voorhit^s,    24    Barb.  *  Cook  v.  Rawdoii,  (i  How.  Pr.  233; 

150.    See,  also.  Civil  Code,  sees.  35,  36,  Hulbcrt  v.  Newell,  4  Id.  93. 

and  37.     As  to  what  acts  will  amount  *  Waterman  v.  Lawrence,  19-   Cal. 

to  affirmance,  see  Henrv  v.  Root,  33  210. 

N.  Y.  526.  '  M- 

« Mxgee    V.    Wel^h,    18    Cal.    155.  *<>  Young  v.  Bell,  1  Cranoh  G.  Ct. 

This  stHtute  is  not  now  in  force.     As  342;  Tucker  v.  Moreland,  10  Pet»  U. 

to   disMffirniaiice   of  deed   by  infant,  S.  58, 

8Pe  5  Ohio,  251.  "  Joyce  v.  McAvny,  31  Cal.  273. 

*  Scales,  Trt-at.  and  Stat.  552.  "  Long  v.  Multord,  17  Ohio  St,  486; 
EsTKS,  Vol.  1—17. 


■258  FORMS  OP  COMPLAINTS.  §  489. 

case,  it  was  held  that  the  rip:ht  of  parol  demuiTer,  or  staying 
proceedings  until  the  infant  attained  his  majority,  was  abolished 
by  statute ;  but  that  the  right  of  the  infant  to  a  day  in  court 
after  coming  of  age  does  not  depend  upon  the  existence  or  non- 
existence of  the  right  of  parol  demurrer. 

§  489.  Trover. — Infancy  is  no  bar  to  an  action  of  trover  for 
.conversion  of  goods.^ 

§  490.  Wages. — An  infant,  after  the  death  of  his  father,  can 
■not  recover  his  wages  for  services  performed  in  the  life-time  of 
ihis  father,  under  a  contract  made  with  the  father.' 

§  491.  Wrongs. — Infancy  is  no  defense  to  an  action  founded 
■on  fraud  and  falsehood  of  the  party  pleading  it.* 


CHAPTER  VII. 

INSANE  PERSONS. 

^  492.  By  Guardian  of  an  Insane  Person,  or  Person  of 
Unsound  Mind. 

Form  No.  102, 

[TiTI.K.] 

C.  D.,  Hii  Insane  Person  [or  Person ' 
ot  Un!»i>iind  Mind],  by  A.  B.,  his 
■Guardian,  Plaintiff, 
against 
E.  P.,  Defendant. 

The  plaintiff  complains,  and  alleges: 

I.  [State  the  cause  of  action.] 

II.  That  on  the day  of ,  18...,  at  the  county 

of   ,   the  superior  judge  of  said  county  [or  city  and 

county],  state  of  California,  upon  the  petition  of  ,  and 

after  due  notice  and  hearing,  adjudged  the  said  C.  D.  to  be  an 
insane  person  [or  incapable  of  taking  care  of  himself  and  manag- 
ing his  property]. 

III.  That  afterward  on  the  same  day  [or  on  the  day 

of ,   18...],   at  said  county   [or  city   and    county],    said 

superior  judge  [or  court],  appointed  the  plaintiff  guardian  of 
the  person  and  estate  of  the  said  C.  D. ;  that  he,  tliis  plaintiff, 
has  given  bond  as  required  by  law,  and  still  and  now  is  such 
guariliauof  the  said  C.  D.,  as  aforesaid. 

[D  KM  AND  OF  Judgment.] 
§  493.    Appointment  of  Guardian. — Upon  petition  under 

'*  Vasse  V,  Smith.  6CrHnch,  226;  Fish  v.  Ferris,  6  Duer,  49;  Schunemanny. 
Para  lis.'.  4tj  How.  Pr.  426. 
«  Itobv  V.  Lyndall,  4  Cranch  0.  Ct.  851. 
•  Catu  V.  Phaleii,  2  How.  Pr.  376 ;  see  California  Civil  Code,  sec  4L 


§  4i^8.  INSANE  PEliSONa  259 

oatb.  by  any  relative  or  frieni  of  any  insane  person,  or  any 
pers  in  who  by  old  age  or  other  cause  is  mentally  incompetent, 
the  probate  judge  shall,  after  hearing  and  examination,  appoint 
aguaidiau  (jf  his  person  and  estate.^  And  every  such  guardian 
shall  appear  for  and  represent  his  ward  in  all  legal  suits  and 
proceedings,  unless  another  person  is  appointed  for  that  purpose, 
as  guardian  or  next  friend.* 

§  494.  "Duly  Appointed."— The  word  "  duly,"  as  used  in 
the  New  York  forms,  may  be  omitted,  as  jurisdiction  of  the  pro- 
bate court  will  be  presumed. ^ 

§  495.  Limitations. — The  probate  of  a  will  shall  be  conclu- 
sive, if  not  contested  witliin  one  year,  but  in  the  case  of  infants, 
married  women  and  persons  of  unsound  mind  alike,  a  period  of 
one  year,  after  their  respective  disabilities  ai*e  removed  is  granted 
by  the  probate  act.* 

§  496.  Attack  on  Authority  of  Guardian. — Letters  of 
guardianship  of  an  insane  person  can  not  be  questioned  in  a  col- 
lateral proceeding,  and  are  admissible  in  evidence.* 

§  497.    Against  the  Guardian  of  an  Insane  Person. 

Fo7'7n  No.  103, 
[TiTLK.] 

A.  B ,  Plaintiff, 
against 
0.  D..  Quardirtn  of  E.  P.,  an  Tnsnne 
Per.*on    [or  Person  ot  Unsound 
Miri'l].  Defendant. 

The  plaintiff  complains,  and  alleges: 

I.  [State  a  cause  of  action  against  an  insane  person.] 

II.  That  afterwards  [or  on  the day  of  ,  18...], 

the  said  E.  F.,  was  adjudged  by  the court  to  be  a  per- 
son of  unsound  mind. 

III.  That  the  defendant  was,  on  the day  of , 

18  ...,  appointed  by  the  said  court  guardian  of  the  person  and 
estate  of  the  said  E.  F.,  that  he,  the  defendant,  accepted  said 
appointment,  and  is  now  such  guardian. 

Wherefore  the  plaintiff  demands  judgment  for dol- 
lars, with  interest  from  to  be  paid  out  of  the  estate  of 

the  said  E.  F.,  in  the  hands  of  the  defendant. 

§  498.  Ejectment. — The  guardian  of  a  lunatic,  etc.,  has  no 
estate  in  his  lands ;  and  an  action  of  ejectment  for  the  lunatic's 
land  must  be  brought  in  the  lunatic's  name.^ 

»  California  Code  C.  P.  sec.  1764.  »  Warner  v.  Wilson,  4  Cal.  810. 

•  Cal.  Code  C  P.,  sec.  1769.  •  Petrie  v.  Shoemaker,  24  Wend.  85. 

•  See  Bloom  v.  Burdick.  1  Hill,  130.  For  a  history  of  the  judical  custody 
As  to  presumption  of  jurisdiction,  see  of  lunntirs,  see  Brown's  Case,  1  AboL 
"Jurisdiction."  c.2.  Pr.  108;  S.C.,  4  Duer,  613. 

«  Cal.  Code  C.P.,  sec  1388. 


260  FORMS  OF  COMPLAINTS.  §  499. 

§  499.  Equity  Suits. — If  any  person  has  a  legal  or  equitable 
claim  against  the  estate  of  an  insane  person,  which  is  under  the 
care  of  the  guardian,  wlio  refuses  to  allow  the  same,  he  must 
apply  to  chancery  by  petition.  He  will  not  be  permitted  to  sue 
at  law  except  under  the  sanction  of  chanc^ery.^ 

§  500.  Habitual  Drunkard.— In  New  York,  where,  pend- 
ing a  suit  brouglit  by  a  creditor  to  "each  the  assets  of  his  debtor, 
the  latter  is,  by  proceedings  previously  commenced  in  another 
court,  adjudged  to  be  an  habi  ual  drunkard,  and  a  committee  is 
appointed  of  his  estate,  the  court  in  which  the  former  suit  is 
pending  can  not  properly  proceed  to  final  judgment.'  The 
rules  of  comity  always  observed  toward  each  other  by  courts  of 
concurrent  jurisdiction,  would  prevent  the  granting  of  a  decree 
as  prayed  for.' 

§  501.  Lunatic. — A  suit  in  equity  for  the  benefit  of  a  lunatic 
must  be  brought  in  his  own  name.* 

§  502.  Necessary  Averment. — A  complaint  against  the 
guardian  of  an  habitual  drunkard  must  state  with  particularity 
the  court  and  authority  by  which  the  debtor  was  declared  an 
habitual  drunkard. ^ 

§  503.  Personal  Actions. — And  there  is  no  distinction  be- 
tween actions  concerning  his  realty  and  those  relating  to  his 
personal  estate,  since  all  actions  must  be  brought  in  the  name 
of  the  lunatic.^  In  Alabama,  a  person  may  sue  an  adult  lunatic 
for  necessaries  furnished  him,  and  is  entitled  to  proceed  in  the 
case  upon  the  appointment  of  an  attorney  for  the  defendant, 
although  there  is  no  guardian  ad  litem.'' 

»  Matter  of  Heller,   8  Paige,  199;  *McKillip  v.  McKillip,  8Barb  552; 

Brasher  v.    Van  Cortlandt,  2   Johns.  Lane  v.   Schermerhorn.    1   Hill,   97; 

Ch.  242;  Williams  v.  Estate  of  Cam-  Petrie  v.  Shoemaker,  24   Wend.  85; 

eron,  26  Barb.  172.  Davis  v.  Carpenter,  12  How.  Pr.  287; 

«  In  re  Helle,  3  Paige  Ch.  199 ;  Clarke  Re  McLaughlin,  Clarke's  Ch.  1 1 8. 

V.  Dunham,  4  Den.  262 ;  In  re  Hopper,  »  Hall  v.  Taylor,  8  How.  Pr.  428. 

6  Paige  Ch.  489;  Robertson  v.  Lain,  •  Lane  v.  Schermerhorn,  1  Hill,  97; 

9  Wend.  649.  McKillip  v.  McKillip,  8  Brtrb.  5.52. 

•  iJiblo  v,  Harrison,  9  Boaw.  668,  '  Ex  parte  Northington,  37  Ala.  496. 


§  506.  PARTNERS.  261 

CHAPTER  VIII. 

PARTNERS. 

§  504.  Title  and  Commencement  of  Complaint  by 
Fanners. 

Form  No.  I04, 

[TiTLK.] 

A.  B.  and  0.  D.,  Partnprs,  under" 
the  firm  uaoie  of''  A.  B.  &  Co.," 
Plaiuiifis, 
aaninat 
E.  P.  and  Q-.  U.,  Partners,  under 
the  firm  name  of  "  E.  F.  &  Co.," 
DefendHiits. 

A.  B.  and  C.  D.,  the  plaintiffs  in  the  ahove-entitled  aotion, 
complain  of  E.  F.  and  G.  H.,  paitneis,  uuder  the  firm  name  of 
"E.  F   &  Co.,"  andalleore: 

I.   [State  cause  of  action.] 

[DkMAND  or  JuDaMKNT.] 

§  505.  Actions  between  Partners.— As  a  general  rule,  no 
action  at  law  can  be  maintained  between  partners,  pending  the 
relation  as  .nich,^  although  a  stipulation  by  one,  for  the  benefit 
of  the  others,  may  be  enforced  by  them  or  their  trustees,  as 
against  a  limited  partner. ^  They  can  not  sue  one  another  for 
any  of  the  business  or  undertakings  of  the  firin.^  They  can 
only  ask  for  a  dissolution  and  an  accounting.  One  partner  can 
not  sustain  an  action  against  his  copartner  for  the  delivery  of 
personal  property  belonging  to  the  copartnership.^  But  one 
partner  may  sue  his  copartner  on  a  note.^  Or  one  partner  may 
sue  another  at  law  for  damages  caused  by  a  premature  dissolu- 
tion on  breach  of  coparLiiersliip  articles,^  and  after  division  of 
a  specific  fund  he  may  sue  for  his  allotted  portion.'  So,  one 
partnership  firm  may  sue  another,  having  a  mutual  partner,  for 
an  ascertained  balance,®  and  such  mutual  partner  may  elect 
whether  to  be  plaintiff  or  d<^fendant  in  tlie  action. 

§  506.  Authority  of  Partner. — In  California  a  partner  can 
not  make  an  assignment  of  the  partnership  property  to  a  creditor, 
or  in    trust  for  creditors,    nor  dispose  of  the  good-will  of  the 

*  Koninwsburg  V.  Launitz,  1  E.  D,  215;  but  see  Robinson  v.  Mcintosh,  8 

Smith,  2I0.  Id.  'in. 

»  Kobiiison  ▼.  Mcintosh,  3   E.   D.  ♦  Buckley  v.  Carlisle.  2  Cal.  420. 

Smith,  221.  '  Van  Ness  v.  Forrest,  8  Cmnch,  30. 

»  Buckley  v.  Carlisle.  2    Cnl.  420;  «  Ba.i^ley  v.  Smith,  6  Seld.  -iSO. 

Sto  It' V.  Kouse,  3  Id.  292 ;   Birnstead  ^  Urosbv   v.   Nii-hois,   3    Bosw.  450; 

V.  Empire  Min,  Co.,  5  M.  ;-iOO;   Kou-  R..s*v.  Cornell,  4-5  Cat.  133. 

ingsburg  v.  Launitz,   1  E.  D,  Smith,  *  Cole  v.  Reynolds,  18  N.  Y.  74. 


262  FORMS  OF  COMPLAINTS.  §  507. 

business,  nor  dispose  of  the  whole  of  the  partnership  property 
at  once,  un  ess  it  consists  entirely  of  merchandise,  nor  do  any 
act  which  would  maite  it  impossible  to  carry  on  the  ordinary 
business  of  the  partnership,  nor  confess  a  judgment,  nor  sub- 
mit a  partnership  claim  to  arbitration,  unless  his  copartners 
have  wholly  abandoned  the  business  to  him,  or  are  incapable 
of  aciing.^  Nor  can  one  member  of  a  partnership  bind  his  co- 
partner by  a  promissory  note  for  a  partnership  demand,  made 
after  the  dissolution  of  the  partnership.* 

§  507.  Arbitration. — In  Vermont  it  was  held  that  a  partner 
has  not  authority,  as  such,  to  submit  partnership  matters  to 
arbitration,  so  as  to  make  the  award  binding  on  the  firm.^  A 
partner  may  submit  his  own  interest  in  the  firm  to  reference, 
but  he  can  not  thereby  bind  the  other  partners.* 

§  508.  Individual  Interest  — The  interest  of  a  copartner- 
ship can  not  be  given  in  evidence  on  an  averment  of  individual 
interest ;  nor  an  averment  of  copartnership  interest  be  supported 
by  a  special  individual  contract.* 

§  509.  Joint  Assumpsit. — "Where  suit  is  brought  on  a  part- 
nership transaction,  the  complaint  stating  a  contract  with  the 
partner  sued,  evidence  may  be  given  of  a  joint  assumpsit.^ 

§  510.  Judgment  Against  Partners— Service  on  One. — A 
partnership  consisting  of  several  persons  must  sue  or  be  sued 
by  their  names  at  length,  and  not  in  the  name  of  the  firm.' 
Such  is  the  common-law  rule;  but,  "when  two  or  more  per- 
sons, associated  in  any  business,  transact  such  business  under 
a  common  name,  whether  it  comprises  the  names  of  such  per- 
sons or  not,  the  associates  may  be  sued  by  such  common  name, 
the  summons  in  such  cases  being  served  on  one  or  more  of  the 
associates ;  and  the  judgment  in  the  action  shall  bind  the  joint 
property  of  all  the  associates,  in  the  same  manner  as  if  all  had 
been  named  defendants  and  had  been  sued  upon  their  joint 
liability,"  is  the  form  of  a  provision  found  in  the  California 
Code  of  Civil  Procedure.  Similar  provisions  exist  in  the  codes 
or  statutes  of  many  of  the  states.  The  supreme  court  of  the 
United  States  has  refused  to  give  a  judgment  thus  obtained 
against  a  partner  not  served  with  process  any  extra  territorial 
force,  on  the  ground  that  the  judgment  was  obtained  without 

1  Civil  Code,  sec.  2430.  see  also  Lyle  v.  Rodgers,   5  Wheat 

« Curry    v.     White,    61     Cal.    580;  394. 

see    also   Stokes  v.  iStevens,    40    Id.  *  Graves  v.  Boston   Mar.  Ins.  Co., 

891.  2  Crunch,  215. 

»  Martin  v.  Thrasher,  40  Vt.4R0.  •  Barrv  v.  Foyles,  1   Pet.  U.  S.  811. 

*Ji»rthau8  v.  Ferrer,  1  Pet.  222;  »  JJentley  v.  Smith,  3  Cai.  170. 


§  511. 


PARTNERS. 


263 


due  process  of  law.*  In  several  states  the  validity  of  such  a 
judgment  has  been  either  tacitly  assented  to,  or  expressly  upheld 
by  the  courts.*  In  California,  the  earlier  cases  upheld  the  con- 
stitutionality of  such  a  judgment,^  but  this  position  has  been  since 
receded  from,  and  such  judgments,  at  least  as  against  the  partner 
not  served,  are  considered  void.^ 

§  511.     Liability  of  Partners. — The  whole  of  the  partners 
are  liable  on  a  warranty  by  one  of  the  members,  on  sale  of  firm 


1  Mason  v.  Eldred,  6  Wall.  239; 
Public  Works  v.  Columbia  College,  17 
Id.  527 ;  D' Arcv  v.  Ketchum,  11  How. 
165;  Phelps  v/Brewer,  9  Gush.  890; 
HhII  v.  Lhiining,  91  U.  S.  160. 

'Johnson  v.  Lough,  22  Minn.  203; 
Lahey  v.  Kingon,  13  Abb.  Pr.  192; 
Harper  v.  Brink,  24  N.  J.  L.  333; 
Martin  V.  Rising.  2  Pac.  C.  L.  J.  56; 
Gu  inond  v.  Nrt»t,  44  Tex.  114;  Kidd 
V.  Brown,  2  How.  Pr.  20;  Whitmore 
V.  Shiveric-k,  3  Nev.  288. 

»  Welsh  V.  Kirkpatrick,  30  Cal.203. 

*Tay  V.  Hawiey,  39  Cal.  95.  In 
this  case  the  court,  per  Rhodes,  J., 
said  :  "  The  statute  provides  that  the 
•joint  property'  of  all  the  defend- 
ants may  be  taken  in  execution  for 
the  8!lti^la  lion  of  the  judgment;  hut 
none  of  the  cases  in  this  court  de- 
fines such  j>int  property.  *  *  * 
In  Mason  v.  Denis  on,  15  Wend.  64, 
it  is  said  that  the  term  applies  to  the 
property  which  one  defendant  might 
apply  to  the  satisfaction  of  the  debt, 
without  consuliing  his  co-contractor. 
Accepting  the  restriction  indicated  in 
that  CHse,  or  even  limiting  the  mean- 
ing of  'joint  property'  to  part- 
nership property  of  the  persons  al- 
leged to  be  joint  debtors,  we  are 
utterly  unable  to  see  how  a  judg- 
ment that  is  to  be  enforced  against 
the  interest  in  such  property  of  a  per- 
son who  has  not  been  served  with 
process,  and  has  not  appeared,  can  be 
maintained.  It  is  a  cardinal  princi- 
ple of  jurisprudence  that  a  judgment 
Bhall  not  bind  or  conclude  a  man, 
either  in  respect  to  his  person  or  prop- 
erty, unless  he  hHS  had  his  day  in 
court.  No  person  shall  be  deprived 
of  liie,  liberty,  or  property  without 
due  process  ot  law.  says  the  constitu- 
tion; but  this  principle  is  older  than 
■written  constitutions,  and  without 
invoking  the  constitutional  declara- 
tion, every  person  may,  as  a  matier 
of  common  rii^ht,  insist  that  he  be 
heard  iu  bis  owu  defense  before  judg- 


ment passes  which  binds,  charges,  or 
injuriously  affects  his  person  or  es- 
tate. It  is  no  answer  to  say  that  the 
judgment  affects  only  the  joint  prop- 
erty of  the  defendants — property 
that  either  of  the  debtors  might  ap- 
ply to  the  satisfaction  of  the  common 
debt — for  that  assumes  that  the  de- 
fendants are  joint  debtors,  and  that 
may  be  to  the  defendant  who  is  not 
served  the  vital  point  of  the  contro- 
versy. He  may  be  ready  to  admit 
every  allegatiim  of  the  complaint, 
except  that  he  is  a  party  to  the  con- 
tract; or  he  may  even  admit  the  con- 
tract, and  yet  be  ready,  if  an  oppor- 
tunity were  presented,  to  make  a 
successful  defense  on  the  ground  of 
fraud,  failure  of  consideration,  pay- 
ment, accord  and  satisfaction,  etc. 
The  defendant  who  is  served  may  be 
igni.rant  of  the  defenses  upon  which 
his  co-defendftnts  would  rely,  or  he 
may,  either  negligently  or  purposely, 
omit  to  present  them.  And  what- 
ever his  answer  may  be,  he  only 
answers  for  himself;  and  there  is 
nothing  in  the  law  regulating  the  ac- 
quisition or  disposition  of  joint  prop- 
erty, which  confers  upon  one  joint 
owner  the  right  to  defend  actions  for 
bis  fellows.  Unless  it  can  be  shown 
that  such  property  is  under  the  ban 
of  the  law,  a  judgment  which  sub- 
jects to  execution  the  interest  of  a 
person  who  has  had  no  opportunity 
to  be  heard  in  the  action,  can  not  be 
upheld  without  violating  principles 
which  lie  at  the  base  of  ail  judicial 
proceedings."  In  the  latter  part  of 
this  opinion  thejudge  stated  that  the 
provi.«ions  of  the  code,  whiih  provide 
for  summoning  a  defnndani  who  had 
not  oriiiinally  been  served,  to  show 
cause  why  he  should  not  be  bound  by 
the  judgment,  furnish  the  exclusive 
mode  by  which  he  can  be  bound  by 
the  ju<lgment,  and  such  provisions 
nece-sarilj'  imply  that  he  id  not 
already  bound." 


"264  FORMS  OF  COMPLAINTS.  §  512. 

property.^  One  partner  is  liable  to  third  parties  for  injuries 
occasioned  by  negligence  of  another.^  All  are  liable  for  the 
fraud  of  one.3 

§  512.  Partnership,  what  Contitutes. — Actual  intention 
is  necessary  to  constitute  a  partnership  inter  se.  There  must 
be  a  joint  undertaking  to  share  in  the  profit  and  loss.  Each 
party  must,  by  the  agreement,  in  some  way  participate  in  the 
losses  as  well  as  the  profits.*  An  agreement  to  divide  the  gross 
earnings  does  not  constitute  the  parties  to  it  partners. ^  A  part- 
nership may  exist  as  to  third  persons,  when  there  is  no  partner- 
ship as  between  the  persons  thus  liable.^ 

§513.  PartnsrshipProperty.— The  plaintiff  must  recover 
on  the  allegations  in  his  complaint,  if  at  all,  and  if  the  com- 
plaint fails  to  aver  that  the  property  was  partnership  property, 
the  ju  Igment  of  the  court  should  not  find  that  fact.''' 

§  514.  Special  Partner. — In  CaUforuia,  the  general  part- 
ners may  sue  and  be  sued  alone,  in  the  same  manner  as  if  there 
were  no  special  partners.  ^ 

§  515.     Salt  for  Dissolution  and  Accounting. 

Form  No.  105. 
[Title.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

I.  That  on  or  about  the day  of   ,  18...., 

the  plaintiff  and. defendant,  at ,  entered  into  and 

formed  a  copartnership  for  the  purpose  of  [state  nature  of  busi- 
ness],  under  the  firm  name  and  style  of    ,, 

and  that  they  thereafter  entered  upon  and  continued  to  trans- 
act such  copartnership  business  under  their  firm  name. 

II.  That  since  the  commencement  of  said  copartnership,  the 
defendant  has  wrongfully,  and  without  the  assent  of  the  plaint- 
iff, applied  some  of  the  money  or  receipts  and  profits  of  their 
said  business  to  his  own  use,  and  by  reason  thereof  has  become 
indebted  to  said  copartnership,  and  impeded  and  injured  the 
business  thereof. 

III.  That  the  plaintiff  has  repeatedly  requested  the  defend- 
ant   to    pay    said    copartnership   the    money    so    received    by 

1  Rwppit  V.  Bradley,  21  Barb.  549.  *  Pattison  v.  Blanchard.  1  Seld.  191 ; 

•  Colter  V.  Betttier,  1  Bo^w.  490.  Story  on  Part ,  sec.  34,  iiiid  cases  cited 

»  Qeity  V.  Devlin,  54  N.  Y.  403.  in  note  3;  Wheeler  v.   Farmer,  supra. 

*2    Kent's   Cora.    23-28  Hazard  v.  'See  Ontario  Bank  v.   H-nne^ey, 

Hazird,     1     St.ry     373;    Denny    v.  4S    N.  Y.  645;  Minlialtau     Bimss  & 

(a  'Ot,  6  Met.  82;  Muzzy  v.  Whitney,  M^sr.  Co.  v.  Sears,  45  Id.  797;  McStea 

10.F<>'in9.228;  Champion  v.  Bostwick,  v.  Matthews,  50  M.  li>6. 

18  W.'nd.  HI ;  Smith  v,  Moynihan,  44  '  Stcrlinsr  v.  Hanson,  1  Cal.  480. 

Ca'.  53;   Wheeler  v.  Farmer,  38  Id.  »  Civil  Code,  sec.  2492. 

2oa. 


§  516.  PARTNERS.  265 

him  and  misappropriated  as  aforesaid,  or  to  account  to  said 
firm  tlierefor,  but  that  the  defendant  has  heretofore  neglected 
and  refused,  and  still  does  neglect  and  refuse,  so  to  account,  and 
has  threatened  to  continue  to  collect  the  copartnership  debts 
and  appropriate  the  same  to  his  own  use. 
Wherefore  the  plaintiff  prays : 

I.  That  said  copartnership  may  be  dissolved,  and  an  account- 
ing taken  of  all  the  dealings  and  transactions  thereof. 

II.  That  the  property  of  the  firm  be  sold,  and  the  firm's 
debts  and  1  abilities  be  paid  off,  and  the  surplus,  if  any,  divided 
between  the  plaintiff  and  defendant,  according  to  their  re- 
spective interests,  and  for  such  other  relief  as  may  be  just,  to- 
gether with  the  costs  of  this  suit. 

§  516.    For  Accounting  After  Dissolution. 

Form  No.  106. 
[Title.] 
Tlie  plaintiff  complains,  and  alleges: 

I.  [Allege  formation  and  purposes  of  partnership  as  in  pre- 
ceding form.] 

II.  That  on   or  about  the  day  of ,  18...,, 

by  the  mutual  consent  of  said  partners,  the  said  firm  was  dis- 
solved. 

III.  That  at  such  time  the  defendant  promised  and  agreed 
with  the  plaintiff  to  account  for  and  pay  over  to  the  plaintiff 
his  proportionate  share  of  all  moneys  which  had  been  previ- 
ously collected  by  the  defendant,  on  account  of  said  firm, 
and  also  to  collect  the  debts  due  said  firm,  and  ren- 
der, from  time  to  time,  to  the  plaintiff,  on  demand,  full 
statements  of  the  debts  due  to  said  firm,  and  the  payments 
mnde  on  account  thereof,  and  to  pay  over  to  the  plaintiff  his 
full  share  of  the  assets  of  said  firm. 

IV.  That  prior  and  since  the  dissolution  of  said  firm  the 
defendant  has  collected    large    sums    of    money,  amountinsi  to 

the  sum  of dollars,  more  or  less,   on  account  of  the 

debts  due  to  said  firm,  and  has  applied  the  same,  and  the  whole 
thereof,  to  his  own  use,  and  has  neglected  and  refused,  and 
still  does  neglect  and  refuse,  to  account  with  and  pay  to  the 
plaintiff  his  proportionate  share  of  the  assets  of  said  firm,  so 
collected  as  aforesaid,  or  any  part  thereof,  although  often  re- 
quested by  the  plaintiff  so  to  do. 

[Demand  for  reUef  as  in  preceding  form,  omitting  prayer  for 
dissolution.  3 


266  FORMS  OF  COMPLAINTS.  §  517. 


J 


§  517.    Against  Partners — Averring  Partnership. 

Form  No.  107, 
[Statk  and  County.]  [Court.] 

John  Dok,  Plaintiff, 
aguinst 
A.  B  and  C.  D..  Defendants. 

The  plaintiff  complains  of  the  defendants,  and  alleges: 

I.  That  at  the  time  hereafter  mentioned,  the  defendants  were 
copartners,  and  doing  business  as  mercliants  or  traders  [or  other- 
wise] at  the  city  of ,  under  the  firm  name  of  A.  B. 

&Co. 

II.  [State  cause  of  action.] 

[Demand  of  Judgment.] 

§518.  Allegation  of  Partnership. — The  same  allegation 
will  do  where  the  plaintiffs  are  partners,  substituting  the  word 
"plaintiffs"  for  "defendants."  Where  the  partnership  is  a 
material  fact,  it  should  be  alleged.^  A  distinct  averment  of 
partnership  between  the  plaintiffs  is  only  necessary  when  the 
right  of  action  depends  upon  the  partnership.'  When  a  joint 
ownership  or  joint  contract  will  enable  them  to  recover,  it  is  no 
objection  to  their  complaint  that  their  partnership  is  not 
pleaded. 3 

§  519.  Dormant  Partner. — At  common  lawadormant  part- 
ner need  not,  and  ought  not  to  be  joined  in  a  suit  by  the  firm.* 
But  if  a  dormant  partner  be  unknown  in  the  contract  of  a  lease, 
it  was  held  that  he  need  not  be  joined  as  defendant.^  They  have 
the  right,  but  are  not  bound,  to  sue  all  under  such  circumstances.' 
Where  the  name  of  a  dormant  partner  was  fraudulently  concealed, 
an  injunction  to  restrain  a  levy  on  partnership  i>roporty  was  set 
aside.' 

§  520.    By  a  Surviving  Partner. 

Form    JVo.  108. 
[State  and  County.]  rOouBT.] 

John  Dok,  Plaintiff,  "j 

against  V 

Richard    Roe.    Defendant.     J 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  lime  hereinafter  mentioned,  the   plaintiff  and 

'  Spe  Parties,  aw/e.  8  Cow.  84;  Clark  v.   Miller,  4  Wend. 

2Loperv.  Welch,3Dner,  644;  and  6'_'S:  N.  Y.  Dry  D-xk  C.  v.  Tread- 
see  Oi-chs  v.  Cook,  III.  Itil.  well.  19    Weiid.  5io.      But    the   rule 

*  For  a  siiffi 'ietit   tli(m<;h  informal  w.<uid  appear  to  he  i>ihi'rwis«  under 

averment  <>t  p-irtniTsliip.  see  Aiiable  tlii- cnde  of  New  York:   See  Si'cor  v. 

V.  Conklin,'  25  N.  Y.  470;   AnaMo  v.  K'-lh-r,  4  Duer,  41') ;  nmi  compare  Bel- 

SteMin  P:tiiriiieCo..  lii  Ahh.  Pr   -iSfi.  bIimwv.  Colie,  1  E   0.  Smith.  218, 

«  Lovi'ck  V.  Shatloe  2  E-^p  4f)H;  7  T.  »  Hurlbut  v.  P.-st.  I  H  sw,  2S. 

R  .T)l  ;   Llovd  V.  Ardibowle.  2  'I'aunt.  «  lirown  v.  iiidsr.ll.  29  W  <rh  .'>49. 

824 :  1  Ch.  PI.  9 :  Ulurk-.ou  v.  Carter,  '  Van  Valeu  v.  Kussell,  13  Barb.  690. 


§  526.  PARTNERS.  267 

one  C.  D.  were  partners,  do'ng  business  as  merchants  or  traders 

[or  otherwise]  at  the  city  ,  under   the  firm  name 

of  "John  Doe  &  Co." 

II.  [Statement  of  cause  of  action.] 

III.  That  on  the  day  of ,  18...,  at , 

said  C.  D.  died,  leaving  the  plaiutilf  the  sole  survivor  of  the  said 
firm.^ 

[DkM/VND     or  JUDQMEN-T.] 

§  521.  Dutiss  of  Sarv^iv^iig  Partner. — The  snrviving 
partner  is  to  wiad  up  the  affairs  of  the  partnershi|),  and  pay  its 
debts  out  of  the  assets,  if  sufficient,  and  divide  the  residue,  if 
any,  among  those  entitled  to  it.^  And  a  claim  of  the  surviving 
partner  against  the  estate  of  the  deceased  partnei  is  contingent 
and  does  not  become  absolute  till  the  partnership  affairs  are 
settled. 

§  522  Partnership  D3bt, — An  action  at  law  does  not  lie 
against  the  personal  representative  of  the  dL'censed  partner.  It 
must  be  brought  against  the  survivor.^  So,  when  one  of  two 
joint  covenanters  dies."* 

§  523.  Promise,  how  Stated. — In  an  action  for  a  debt 
which  accrued  to  the  partnership  before  the  death  of  one  of  its 
members,  tliat  fact,  the  deatli  of  the  member,  and  survivorship 
must  be  alleged,  unless  there  has  been  an  accounting  with  the 
survivor.  5 

§  524.  Right  of  Posssssioi. — A  surviving  partner  has  the 
exclusive  riglit  of  possession,  and  the  absolute  power  of  disposi- 
tion of  the  assets  of  the  partnership.^ 

§  525.  Services. — He  is  not  entitled  to  pay  for  his  services 
in  merely  winding  up  the  affairs  of  tlie  concern.''  But  if  he  ex- 
pends his  time  and  labor  in  the  care  and  management  of  the 
partnership  property,  by  which  its  value  is  enhanced,  he  should 
receive  compensation  for  the  same. 

§  526.  Sarvivor,  Liabiliti3S  of. — The  survivor  of  a  part- 
nership may  be  charged  on  a  debt  of  the  firm,  contracted  before 
the  death  of  the  other,  and  without  averring  the  partnership, 
death,  etc.®  And  the  personal  representative  of  a  deceased  part- 
ner can  not   be  joined  with  him,  unless  the  survivor  be   insol- 

1  This  form  13  necessary  only  when  'Allen    v.  Hill.    16    C«l.    113;  see 

the  cause   ot"   action  accrued  to   tlie  Culiforuia  Code  Civil  Procedure,  sec 

par  nership.  158i. 

«  Gleiisoii  V.  White,  34  Cal.  258.  '  Griggs  v.  Clark,  23  (ft'.  427. 

»  Grant  v.  S  inrtiT,  1  Wend.  148.  *  Got-letv.  McKinstry.  1  -Johns.  Cas. 

*  Gt-re  V  Clu'k,  6  Hill,  8.50.  40");  compare  liolmea'v.  De  Camp,  1 

»  Hnlin.-s  V.  D-  Cainp,  1  .Johns.  36;  Julius.  34. 
Tooi  V.  Goodrich,  2  Julias,  'iid. 


] 


268  FORMS  OF  COMPLAINTS.  §  527. 

vent.^  Where,  after  the  death  of  one  -partner,  on  account  stated 
between  defendant  and  the  copartnership,  admitting  balance  due 
for  goods  sold  in  the  life-time  of  deceased,  the  survivor  may  re- 
cover it  on  insimvl  computassent^  without  averring  the  death  of  the 
Other  partner.  2 


CHAPTER  IX. 

PUBLIC  OFFICERS. 

§  527.    By  or  against  Public  Officers. 

Form  No.  109. 

[Statb  akd  County.]  fCouKT.] 

A.  B.,  [Comptntller]  of  the  State  of " 

Calilorniii,  riaiiilitf, 

agnhiat 

CD.,  Dt-leiidant. 

The  plaintiff  complains,  and  alleges: 

I.  That  he  is  [Comptroller  of  the  State  of  California], 

II.  [State  the  cause  of  action,  etc.] 

[Dkmand  of  Judgmknt.] 

§  528.  Actions  against  Officers. — That  in  an  action  against 
the  collector  of  the  customs  for  refusing  a  clearance,  a  count 
stating  that  the  plaintiff  was  the  owner  of  the  vessel,  laden  with 
a  cargo  of  a  certain  value,  the  allegation  is  sufficient  as  respects 
ownership  of  the  cargo. ^ 

§  529.  Acts  of  Deputy. — In  an  action  against  a  sheriff  for 
■wrongful  acts  of  deputy,  it  is  not  essential  that  the  complaint 
should  allege  that  he  is  sheriff  nor  the  acts  complained  of  were 
committed  by  his  deputy.'*  The  act  of  the  deputy  should  be 
alleged  as  that  of  the  sheriff.* 

§  530.  Official  Character  must  be  Averred.— The  offi- 
cial character  must  be  averred  in  the  body  of  the  complaint.^ 
A  very  short  averment,  if  clear  in  its  terms,  is  sufficient ; ' 
though  a  special  authority  must  be  averred  with  fullness  suffi- 
cient to  make  it  clearly  apparent.^    But  a  sheriff  suing  as  such, 

1  Voorhis'  Ex'rs  v.  Child,  17  N.  Y.  «  Compare  Gould  v.  Glass,  19  Barb. 

854;   Muorehouse  V.  Ballon,  10  Barb.  185,  with  ISiuith  v.  Levinus,  8  N.  Y. 

289;  Ult^^ills  V.  FneiUHii,  2  Diier,  tJ50,  47-';  Ot^deiishurjih  B'k  v.  Van  Hensse- 

»  HDliiifS  V.  DeCmnp,  1  Johns.  34.  laer,  GUill,  210;  Delafield  v.  Kinnfy, 

•See  Bas  v.  Steele,  3  Wash.  C.  Ct.  24  Wend.  345;  Fowler  v.  WesLervelt, 

881.  17  Abb.  Pr.  59;  40  Barb.  374. 

*  Poinsett  V.  Taylor,  6  Cal.  78;  Cur-  'Smith   v.   Levinus,  4    Seld.   472; 

tiss  V.  Fay,  37  Burl).  64.  Root  v   Price,  22  How.  Pr.  372;  llal- 

»  People  V.  Ten   Evck,    18   "Wend,  lelt  v.  Harrower,  33  Barb.  5u7. 

448;  Hiisch    v.  Ruid.    89  Cal.    318;  « id. 
Cttai|;beil  V.  Phelps,  17  Mass.  240. 


§  533.  PUBLIC  OFFICERS,  269 

need  not  state  in  his  complaint  liow  he  acquired  his  office.  It 
is  enougli  to  show  that  he  is  sheriff  in  fact.^ 

§  531.  Official  Capacity,  how  Averred. —Tl  at  "the 
plaintiff  is  sheriff  of  the  city  and  county  of  San  Francisco,"  is 
a  sufficient  allegation  of  his  official  character. ^  Wliere  the  title 
gives  the  names  of  the  plaintiffs  wiih  the  description  "  commis- 
sioners of  highways,"  and  in  the  body  of  the  complaint  it  is 
averred  "  that  the  plaintiffs,  commissioners  of  higliways,  com- 
plain," the  character  in  which  they  complain  is  sufficiently  in- 
dicated.' 

§  532.  Title. — A  party  suing  as  a  public  officer  should  sue 
in  his  own  name,  with  the  addition  of  his  name  of  office.'*  For 
the  words  in  brackets  in  the  above  form  any  others  may  be  sub- 
stituted wlrich  will  properly  designate  the  title  and  jurisdiction 
of  the  officer. 

§  533.    By  Sheriff  Suing  in  Aid  of  Attachment 

Form  No.  110, 

[TlTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  he  is  the  sheriff  of  the  [city  and]  county  of , 

duly  elected,  qualified,  and  acting  as  such. 

II.  That  on  the day  of ..,  18  ...,  a  warrant  of  at- 

taclmient  was  issued  out  of  this  court,  and  to  him  diiected  and 
delivered,  as  such  sheriff,  in  an  action  against  A.  B.,  whereby  he 
was  directed  to  attach  and  keep  all  the  property  of  said  A.  B. 
in  his  county. 

III.  That  the  defendant  then  had  in  his  possession  

dollars  belonging  to  A.  B.  [or  was  indebted  to  the  said  A.  B.  in 
the  sura  of dollars]. 

IV.  That  on  the  day  of   ,  18    ...,  the   plaintiff 

made  due  service  of  said  warrant  by  delivei'ing  to  and  leaving 
with  said  defendant  a  copy  thereof,  with  a  notice  showing  the 
property  levied  on  ;  whereupon  the  plaintiff  became  entitled  to 
receive  from  the  defendant,  and  he  became  answerable  to 
the  plaintiff  for  said  dollars,  which  the  defendant  re- 
fuses to  pay  over  to  the  plaintiff,  or  to  account  to  him  therefor ; 
to  his  damage dollars.^ 

[Djcmand  of  Judgment.^ 

1  Kelly  v.Brensinff,  33    Barb.  123;  lyn  v.  Acker,  26  How  Pr.  263;  Fow- 

affirmins?  S.  C,  32  Id.  601.  ler  v,  Westervelt,  40  Barb.   384;   17 

»  Kelly  V.  Breusing,  32  Barb.  601 ;  Abb.  Pr.  69. 

a£5rined  in  33  Barb.  123.  *  This    form,  with  slight  changes, 

*  Fowler  v.  Westervelt,  40  Barb.  374.  from  Abbott's  excellent  work  on  fornas, 

*  Paige  V.  Fazackerly,  36  Barb.  392;  is  not  applicable  under  the  California 
Trustees  Fire  Department  of  Brook-  statute ;  out  being  an  approved  form 


270  FORMS  OF  COMPLAINTS.  §  534. 

§  534.  Right  of  Action. — The  sheriff  who  levies  an  attach- 
ment has  not  the  right  of  property  in  the  debt,  and  can  not 
maintain  an  action  in  his  own  name  for  the  recovery  thereof.^ 
An  indemnity  bond  to  the  sheriff  to  retain  property  seized  un- 
der attachment,  is  an  instrument  necessary  to  carry  the  power 
to  sue  into  effect. ^ 

§  535.    Ajiiiast  Sheriff,  for  not  Executing  Process. 

Form  No.  111. 
[Title.] 

The  plaintiff  complains,  and  alleges : 

I.  That  at  the  time  of  issuing  the  execution  hereinafter  men- 
tioned, the  defendant  was  the  sheriff  of  the  county  of  Sacra- 
mento, in  this  state. 

II.  That  on  the day  of ,  18...,  at , 

judgment  was  duly  given  and  made  in  an  action  in  the 

court,  in  favor  of  the  plainiiff,  against  one  E.  F.,  for  [one  thou- 
sand] dollars. 

III.  That  on  the  day  of  ,  18...,  an  execution 

against  the  property  of  the  said  E.  F.  was  issued  upon  the  said 
judgment,  and  directed  and  then  delivered  to  the  defendant  as 
sheriff  aforesaid. 

IV.  That  on  that  day  the  said  E.  F.  had  [a  large  quantity  of 

general  merchandise]  in  his  store,  No ,  First  street,  San 

Francisco,  and  owned  the  said  store  and  lot  [or  as  the  case 
may  be],  in  the  said  county,  out  of  which  the  said  execution 
might  have  been  satisfied,  of  which  the  defendant  had  notice. 

V.  That  he  refused  and  neglected  to  make  a  levy  under  or  by 
virtue  of  said  execution,  upon  said  property,  or  any  part  thereof 
[or  as  the  case  may  be ;  and  if  he  levies  a  part,  specify  it] ,  as  by 
said  execution  he  was  required  to  do,  to  the  damage  of  the 
plaintiff  dollars. 

[Dkmand  of  Jubombnt.] 

§  536.  Arrest,  Naglecting  to  Execute  Order  of.— Tliat 
before  the  return  of  said  order,  to  wit,  on,  etc.,  notice  was  given 
to  the  defendant  that  said  E.  F.  was  within  the  said  county, 
and  that  the  defendant  there  had  said  E.  F.  in  his  view  an  1 
presence,  so  that  if  the  defendant  had  desired  so  to  do  he  could 
have  arrested  the  said  E.  F.,  by  virtue  of  said  order;  but  the 
defendant,  disregarding  his  duty,  did  not  arrest  the  said  E.  F., 
and  willfully  neglected  the  execution  of  said  order,  is  suificieht.^ 

under  tlie  stfttnte  of  the  state  of  New  *  Ruhlette  v.  M«1hado,  1  Cil.  105, 

York,  is  doenipd  of  value  here.     See  '  Davidson  v.  DkIIks,  8  Cnl.  227, 

Kollvv.  Brcusing.  88  Barb.123;  affirm-  »  Dmiuny  v.  Fay,  38  Barb.  la. 
iiig  S.  0.,  82  Id.  UOl. 


§  540.  PUBLIC  OFFICERS.  271 

§  537.  Averment  of  OfScial  Capacity. — That  defendant 
was  sheriff,  or  acted  as  such,  is  a  sufficient  averment  of  capacity.^ 
If  the  object  of  the  suit  is  to  establish  a  personal  and  not  an 
official  liability,  for  which  the  sheriff  could  be  sued  while  he  is 
out  of  office,  an  averment  of  official  character  in  the  title  is  not 
necessary.^ 

§  538.  Breach  of  Duty. — That  although  defendant  could 
have  levied,  of  goods  of  the  execution  debtor  within  his  baili- 
wick, the  moneys  indorsed  on  the  wr  t,  yet  defendant,  disre- 
garding his  duty,  did  not  levy  of  the  said  goods,  the  moneys,  or 
any  part  thereof,  sufficiently  charges  a  breach  of  duty,  and 
implies  improper  conduct  in  the  sale  of  the  goods. ^  But  the 
mere  omission  of  a  deputy  to  inform  the  sheriff  of  having  process 
in  hand  is  not  such  negligence  as  to  charge  the  sheriff,  in  case  a 
writ  last  in  hand  was  executed  first.'* 

§  539.  Execution,  Averment  of. — It  is  not  necessary  to 
state  the  terms  of  the  execution,  as  the  courts  take  judicial 
notice  of  the  forms  of  their  own  proceedings.  The  steps  in- 
volved in  the  issuance  of  the  writ  need  not  be  stated.  It  is  suf- 
ficient to  aver  that  it  was  duly  issued  ;  the  same  is  true  of  the  levy.* 

§  540.  Damages,  how  Averred. — ^The  measure  of  dam- 
ages for  failure  to  execute  an  execution  is  prima  facie  the 
amount  due  on  the  execution.  If  such  amount  could  not  have 
been  collected  by  the  exercise  of  due  diligence,  such  fact  may 
be  shown  in  defense.  Special  damage  need  not  be  averred.^ 
In  Illinois  the  action  lies  where  the  officer  so  delays  in  making 
a  proper  levy  that  the  rights  of  third  parties  intervene.'^  The 
damages  on  failure  to  collect  an  execution  are  such  as  the 
plaintiff  shall  actually  suffer  by  the  sheriff  s  neglect.^  Where 
the  sheriff  accepts  an  assignment  of  a  chattel  mortgage,  the 
plaintiff  in  execution  being  ignorant  thereof,  is  not  bound  by 
his  acts.^ 

'  Potter   V    Liithflr,  8  Johns.  A^\ ;  First  "ITat.  Bank  v.  Rogers,  13  Minn. 

Dean  v.   Gridley,    10  Wend.  2.55;  and  407. 

see  Hall  v.  Luther,  13  Id.  491 ;  com-  «  Moore  v.  Floyd,  4  Or.  101;Led- 

pare  Cmtis  v.  Fav,  87  Barb.  61.  yard  v.  Jones,  7  N.  Y.  SoO:  Uunphy 

'StiUinan  v.  Squire,  1    Den.    827;  v.   Whipple,  25  Mu-h.  10;  Clough  v. 

Armstrong  v.  Garrow,  6    Cow.   4*)8 ;  Monroe,    34    N.    H.    381 ;    Evans    v. 

Overtonv.  Hudson, 2  Wash. (Va)  172;  House,    26   Ohio    St.    488;    Roth   v. 

Hirsch  V.  Rand,  39  Cal.  815;  Curtis  Duval,  1  Idaho,  149;  People  v.  Roper, 

V.  Fay,  87  Barb.  64;  Wymond  v.  Ams-  4  Scam.  560.     That  damages  must  be 

burv.'2  Col.  213.  averred,   see    Nsish    v.    Whitney,    39 

8  MuHett  V.  Challis,   16  Q.  B.  23?>;  Me.  341;  Commonwealth  v.  Lelar,  1 

20  Law  J    R.    (N.  S.)  Q.   B.  Itjl  ;  15  Phila.  333. 

Jur.  243;  Political  Code,  sec,  4180.  »  Davidson  v.  Waldron.  31  111  120. 

«  Whitney  v.  Bulterfield,  13  Cal.  335.  »  Frent-h  v,  Snyvler,  .30  III.  H;i9, 

»  French  v.  Willet,  10  Abb.  Pr.  99 ;  » Dibble  v.  BiiiJijs,  28  111.  48 


FORXIS  OF  COMPLAINTS.  §  541. 

§  541.  Notice. — The  allegation  of  notice,  though  usual, 
seems  unnecessary.^ 

§  542.  Refusal  to  Make  Deed. — In  an  action  aiainst  a 
sheriff  for  special  damages,  resulting  from  a  refusal  on  the  part 
of  the  sheriff  to  make  and  deliver  to  plaintiff  a  deed  to  certain 
premises  purchased  by  plaintiff  at  sheriff 's  sale,  "when  there  is 
no  allegation  in  the  complaint  of  title,  nor  any  averment  that 
in  case  the  deed  had  been  executed,  plaintiff  would  have  been 
able  to  recover  possession  of  the  premises,  or  the  rents  and 
profits,  it  was  held  that  such  complaint  is  insufficient.^ 

§  543.  Replevin. — The  proper  mode  of  declaring  in  a  com- 
plaint against  a  sheriff  for  not  taking  sufficient  secuiiiy  in 
replevin,  or  in  executing  a  writ  in  replevin,  is  stated  in  the  cases? 
cited  below. 3  Where  defendant  had  a  right  to  replevy,  a  com- 
plaint which  avers  that  the  marshal  neglected  to  make  the 
money  is  bad.'* 

§  544.  Selling  Homestead. — A  complaint  against  a  sheriff 
and  his  sureties  for  selling  under  execution  the  homestead  of 
plninliffs,  which  set  out  that  the  sheriff  was  in  possession  of  a 
certain  execution  against  plaintiff,  J.  Kendall,  and  under  color 
of  said  execution  wrongfully  and  illegally  entered  upon  and 
sold  certain  property,  the  homestead  of  plaintiffs,  and  averring 
damages  in  the  sum  of  two  thousand  dollars,  the  value  of  the 
property,  is  insufficient,  as  the  same  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action.  No  damage  has  or  can 
result  from  such  a  sale.  If  the  property  sold  was  a  homestead, 
the  sheriff's  deed  conveyed  nothing.  The  purchaser  at  sale 
could  acquire  no  right  to  the  property,  nor  could  the  plaintiff 
suffer  any  injury. ^ 

§  545.  Against  Sheriff  for  Neglecting  to  Return  Exe- 
cution. 

Form  No.  112. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  of  the  issuing  of  the  execution  herein- 
after mentioned,  the  defendant  was  the  sheriff  of  the  county  of 
,  in  this  state. 

II.  That  on  the day  of ,  18...,  in  an  action 

in  the  superior  court  of  the  county  of ,  in  this  state  [or 

other  court],  wherein  this  plaintiff  was  plaintiff,  and  one  A.  B. 

'  Tomlinson    v.  Rowe,  Hill  &   D.  *  Bisphara    v.  Taylor,  2    McLean, 

Supp.  410.  855. 

»  Knifilit  V.  Fair,  12  Cal,  296.  *  Kendall  and  Wife  v.  Clark,  10  Cal. 

»SeeGibb>»  v.   Bull,  18  .John?. 435;  17. 
Weslervclt  v.  Bell,  19  Weud.  /)31. 


§  549.  PUBLIC  OFFICERS.  273 

was  defendant,  the  plaintiff  recovered  a  judgment  duly  given  by 
said  court  against  the  said  A.  B.,  for dollars. 

III.  That  on  the day  of ,  18  ...,  an  execu- 
tion against  the  property  of  said  A.  B.  was  issued  on  said  judg- 
ment, and  directed  and  then  delivered  to  the  defendant,  as 
sheriff  of  the  county  of ,  of  which  execution  the  follow- 
ing is  a  copy:   [Copy  the  execution  and  indorsement.] 

IV.  That  although    [more  than]  days  elapsed  after 

delivery  of  said  execution  to  the  defendant,  and  before  the 
commencement  of  this  action,  yet  he  has,  in  violation  of  his 
duty  as  such  sheriff,  failed  to  return  the  same,  to  the  damage  of 
the  plaintiff dollars. 

[Pkmand  of  Judqmbnt.] 

§  546.  The  Same— Under  California  Statute.— The  Po- 
litical Code  of  California  provides  as  follows : 

"  If  the  sheriff  does  not  return  a  notice  or  process  in  his  pos- 
session, with  the  necessary  indorsement  thereon,  without  delay, 
he  is  liable  to  the  party  aggrieved  for  the  sura  of  two  hundred 
d  liars,  and  for  all  damages  sustained  by  him."  ^ 

Under  this  statute,  add  to  the  above  the  following : 
Form  No.  IIS. 

And  whereby,  also,  the  defendant  has  become  and  is  liable 
to  the  plaintiff  in  the  further  sura  of  two  hundred  dollars  under 
the  provisions  of  section  4179  of  the  political  code  of  the  state 
of  California. 

Wherefore  the  plaintiff  demands  judgment  against  the  de- 
fendant for  the  said  sum  of  two  hundred  dollars,  under  the 
provisions   of  the   statute  aforesaid,    and    the   further    sum    of 

d(>Ilars,  his  damages  so  as  aforesaid  sustained,  and  for 

costs  of  suit. 

§  547.  Issue  of  Process. — It  is  sufficient  after  showing 
jurisdiction  to  issue  process,  to  allege  that  it  was  issued. ^ 

§  548.  Property. — In  an  action  for  not  returning  an  ex- 
ecution, the  complaint  need  not  aver  that  defendant  had  prop- 
erty out  of  which  the  money  might  have  been  levied.  The  gist 
of  the  action  is  the  neglect  to  return. ^  It  is  not  necessary  to 
allege  or  prove  special  damages.* 

§  549.  Remedy. — Plaintiff  may  proceed  by  attachment,  or 
may  sue  for  the  neglect.^  This  action  lies,  although  the  sheriff 
has  not  been  ordered  to  make  return. ^ 

1  Political  Code,  «ec.  4179.  '  Burk  v.  0>inripbe11,  15  Jolins.  456; 

'French   V.  \V  illet,  4    Bosw.  649;  Bank  of  Huin«  v.  Curtiss,  1   Hill,  275; 

S.  C  10  Abb.  Pr.99.  •  Burk  v.  Cnnipbell,  15  .J.)hiis.  456; 

«  Pardee  v.  Robertson,  6  Hill.  550.  Bank  of  R..nie  v.  Curtis?,  1  Hill,  276; 

*  Ledjard  v.  .Jones,  7  N.  Y.  550.  Pardee  v. Robertson.  6  Id.  550. 
EsTEE,  Vol.  1—18 


'274  FORMS  OF  COMPLAINTS.  §  550, 

§  550.  Request. —  A  request  to  return  execution  need  not 
be  alleged.^ 

§  551.  Against  Sheriff,  for  Neglecting  to  Pay  Over 
Moneys  Collected  on  Execution. 

Form  No.  II4. 
[Title.] 

The  plaintiff  complains,  and  alleges : 

I.  That  at  the  times  hereinafter  mentioned,  the  defendant 
was  the  sheriff  of  the  county  of ,  in  this  state. 

II.  That  on  the day  of  ,  18...,  at an 

•execution,  then  duly  issued,  in  form  and  effect  as  required  by 
law  against  the  property  of  one  A.  B.,  and  in  favor  of  the 
plaintiff,  upon  a  judgment  for  the  sum  of dollars  there- 
tofore duly  given  in  favor  of  the  plaintiff  against  said  A.  B.,    in 

the  superior  court  of  the  county  of ,  in  this  state,  was 

by  the  plaintiff  directed  and  delivered  to  the  defendant  as  such 
sheriff. 

III.  That  the  defendant  thereafter,  as  such  sheriff,  collected 
and  received  upon  said  execution,  to  the  use  of  the  plaintiff,  the 
sum  of  dollars,  besides  his  lawful  fees. 

IV.  That  although  [more  than]  sixty  days  elapsed,  after  the 
delivery  of  said  execution  to  the  defendant,  before  this  action, 
yet  he  hns,  in  violation  of  his  duty  as  sheriff,  failed  to  pay  over 
to  the  plaintiff  the  amount  so  collected. 

[Demand  of  Judgment.] 

§  552.  The  Same — ^Under  California  Statute. — The  polit- 
ical code  of  California  provides :  "If  he  neglects  or  refuses  to 
pay  over  on  demand,  to  the  person  entitled  thereto,  any  money 
which  may  come  into  his  hands  by  virtue  of  his  office  (after  de- 
ductino;  his  legal  fees),  the  amount  thereof,  with  twenty-five  per 
cent  damages,  and  interest  at  the  rate  of  ten  per  cent  per  month 
from  the  time  of  dema  id,  may  be  recovered  by  such  person."^ 
Under  this  section  neither  the  rate  of  interest  specified  therein 
nor  twenty-five  per  cent  as  damages  can  be  recovered  unless 
there  has  been  a  demand  for  the  money  collected,  prior  to  the 
commencement  of  the  suit,  and  in  such  case  the  complaint  must 
aver  such  demand  and  the  date  thereof. 

The  above  form  is  sufficient  for  the  recovery  of  the  money  re- 
ceived by  the  sheriff  and  legal  interest  from  the  time  it  should 
have  been  paid  over.  If  it  is  desired  to  recover  the  damages 
and  special  rate  of  interest  provided  for  in  the  above  section  of 

»  Cornins:  ▼.  Southerland,  8  Hill,  552 ;  Fishpr  v.  Pond,  2  Id.  838 ;  Howden  v. 
Stani-h,  6  C.  B.  604;  vS,  C.,  60  Eng.  Com.  L.  R.  503. 
•  Pohiicitl  Code,  sec.  41H1. 


§  556.  PUBLIC  OFFICERS.  275 

the  code,  omit  Part  IV  in  the  above  form,  and  insert  the  fol- 

lowii)g. 

Form  No.  115, 

IV.  On  the  .....  day  of ,  18...,  the  plaintiff  de- 
manded of  the  defendant  that  he  pay  over  to  him  the  moneys 
80  received  by  him  upon  said  execution,  as  aforesaid,  less  his 
lawful  fees  thereon,  yet  he  has,  in  violation  of  his  duty  as  such 
sheriff,  failed  and  neglected  to  pay  over  to  the  plaintiff  the 
amount  so  collected ;  by  reason  whereof  the  said  defendant  has 
become  and  is  liable  to  the  plaintiff  for  the  moneys  collected  as 

aforesaid,  to  wit,  the  sum  of dollars,  together  with 

twenty-five  per  cent  thereof,  as  damages   for   the  non-payment 

theieof,  and  interest  on  the  said  sum  of dollars,  at 

the  rate   of  ten  per   cent  per  month  from  the  said day  of 

,  18... 

Wherefore  the  plaintiff  demands  judgrment  against  the  defend- 
ant for  the  said  sum  of dollars  and  interest  thereon 

at  the  rate  of  ten  per  cent  per  month  from  the  said  day  of 

,  18..,  and  the  further  sum  of dollars, 

being  twenty-five  per  cent  of  said  sum  of dollars,  under 

the  provisions  of  the  statute  aforesaid,  and  for  costs  of  suit. 

§  553.  Against  Deputy. — To  render  a  deputy  liable,  an 
express  promise  must  be  shown. ^ 

§  554.  Delivery  of  Execution. — It  is  enough  to  show  the 
delivery  of  execution  without  proving  the  judgment.^ 

§  555.  Demand. — In  an  action  against  a  sheriff  to  recover 
property  seized  under  process,  or  its  value  by  the  owner,  it  is 
not  necessary  that  the  plaintiff  should  show  affirmatively  notice 
and  demand  before  bringing  suit.  This  rule  is  now  established 
by  the  weight  of  authority.  The  early  cases  in  California  held  tha 
contrary,  but  ^liey  have  since  been  overruled.* 

§  556.  Money  Paid  Over.— Where  it  is  averred  in  the 
complaint  that  the  money  has  been  collected,  and  that  defend- 
ant has  failed  to  return  the  execution,  it  will  not  be  presumed 
that  the  money  has  not  been  paid  over.  An  avermeut  to  this 
effect  is  essential.* 

*  Tuttlov.  Love,  7  Johns. 470;  Pad-  nl"©  'KhiPinlpr  ▼.  Lynoli,  2  A>>b.  Anp. 

dock  V.  Cameron,  8  Cow.  212;  and  see  Dec.  538;    Moore  v.  MuiJ  ck.  2o  CaU 

Colvin   V.   Holbrook.   2   N.  Y.    126;  614;  Woodbury  v.  Long.  8  I'itk.  •'iia; 

affirming: S.  C,  3  Barb.  475.  Owinesv.  Frier,  2  A. K.  Marsh.  268; 

•Elliott  V.  Cronk,  13  Wend.36;  and  Jnmison   v,    Hendricks,  2  Blaik^".  94; 

Bee  1  Cow. Tr.  822.  Hicks  v.    Cl.veland.     48   N.    Y.   84; 

»  Weilman  v.  English,  8S  Cal.  583 ;  Glos<op  v.  Pole,  3  M.  &  S.  175 ;  Glass- 
Boulware  v.   Craddock,   30   Id.    190,  poole  v.  Young,  9  B.  AC.  6%;  Ed- 
overruling  Ledley  v.  Hays.  1  Id.  ItiO;  wards  v.  Bridges,  2  St-irk.  896. 
Daumiel  v.  Gorbam,  6  Id.  44    Sue  *  iloag  y.  Warden.  87  CaL  622. 


276  rollMd  OF  COMPLAINTS.  §  557. 

§  557.  Obligation  to  Pay. — So,  to  sfiy  that  plaintiff  h?.s 
been  obliged  to  pay  the  amount  of,  etc.,  in  consequence  of  the 
negligence  and  acts  of  the  <  enMidant  in  his  office  of  under- 
shei  iff,  is  good,  at  least  on  general  demurrer  ;*  even  if  process  is 
voidable.^ 

§  558.  Remedy. — An  action  on  the  case,  or  an  action  for 
money  had  and  received,  may  be  maintained,  at  the  option  of 
the  plaintiff.3 

§  559.  Statute  Penalties. — "Where  a  sheriff  fails  to  pay 
over  money  collected  on  execution,  the  action  should  be  for  a 
false  return.*  The  statute  penalties  against  sheriffs,  for  the 
non-payment  of  moneys  collected  on  execution,  are  only  recov- 
erable when  the  sheriff  by  his  return  admits  the  collection  of 
the  money,  but  refuses  to  pay  it  over.* 

§  560.  Sufficient  Averment. — It  is  enough  to  say  gen- 
erally that  the  defendant  had  collected  or  embezzled,  etc.,  such 
a  sum,  which  he  had  refused,  etc.,  without  setting  forth  the 
particular  items,  which  would  lead  to  prolixity.* 

§  561.  Against  Sheriff,  for  False  Return. 

Form  No.  116. 

[TlTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  of  issuing  the  execution  hereinafter  men- 
tioned, the  defendant  was  the  sheriff  of  the  county  of , 

in  this  state, 

II.  That  on  the day  of ,  18  ...,  at ., 

judgment  was  duly  given  and  made  in  an  action  in  the 

court,  in  favor  of  the   plaintiff,   against  one   G.  W.,  for    [ten 
thousand]  dollars. 

III.  That  on  the  day  of  ,  18  ...,  an  execu- 
tion against  the  property  of  the  said  G.  W.  was  issued  upon  the 
said  judgment,  directed  and  delivered  to  the  defendant,  as 
sheriff  aforesaid. 

tV.  That  the  defendant  afterwards,  and  during  the  life  thereof, 
levied,  under  the  said  execution,  on  property  of  t!ie  said  W.  [of 
the  value  of  ten  thousand  dollars ;  or  sufficient  to  satisfy  the 
said  judgment,  with  all  the  expenses  of  the  execution;  or  state 
particulars  of  property  on  which  he  might  have  levied.] 

1  Husches  V.  Smith,  5  Johns.  168.  *  Ei^ery  v.  Bnchanan,  5  Cal.  5t. 

*  Walden  v.  Davison,  16  Wend.  575;  '  Johnson  v.  Gorham,  6  Cal.  196 : 

B^oon  V.  Crop«ey,  7  N.  Y.  195 ;  and  2  Nov.  378 ;  Gregory  v.  Ford,  14  Cal. 

ece  Ontario  Bank  v.  Hallett.  8  Cow.  143. 

192;  Grosvenor  V.  Hunt,  11   How.  Pr.  «  Postmaster-gfineral  v.  Cochran,  2 

855;  Ginochio  V.  Orser,  1  Abb.Pr.433.  Johns.  413;  Hughes  v.  Smith,  6  Id. 

«  Dygert  v.   Crane,    1  Weud.   634;  KiS. 
Bhepard  v.  Hoit,  7  Hill,  198. 


§  504.  PUBLIC  OFFICERS.  277 

V.  That  the  defendant  afterwards,  in  violation  of  his  duty  as 
such  sheriff,  falsely  returned  upon  the  said  execution,  to  the 
clerk  of  the  county  of ,  that  the  said  W.  had  no  prop- 
erty in  his  county  on  which  he  could  levy  the  amount  of  said 
judj^fment  or  any  part  thereof. 

VI.  That  by  means  of  said  premises,  the  plaintiff  has  been 
deprived  of  the  means  of  oI)taining  the  said  moneys  directed  to 
be  levied  as  aforesaid,  and  which  are  still  wholly  unpaid,  and 
is  likely  to  lose  the  same. 

[Dkmand  of  Judgment.] 
§  562.     The  Sams — Allegation  for  not  Levying  when 
there  was  an  Opportunity,  and  Falsely  Returning  Nulla 
Bona. 

Form  No.  117. 

[Allege  as  in  preceding  form  down  to  IV,  and  insert]  : 

rV.  That  the  defendant   neglected  to  make  any  levy  on  the 

goods  and  chattels,    lands,  and   tenements   of  the  said  G.  W. ; 

and  falsely  and   fraudulently  returned  upon  the  said  writ  to  the 

said  court,  that   the  said  G.  W.  had  not  any  goods   or   chattels, 

lands   or   tenements,    in   his    county.     That   by  reason    of    the 

premises,  the   plaintiff  is   deprived  of  his   remedy  for  obtaining 

payment  of  his  judgment   and  costs  aforesaid,  and  has  wholly 

lost  the  same. 

[Demand  of  Judgment.] 

§  563.    The  Same — Another  Form  of  Allegation. 

Form.    No.   118. 

[Allege  as  in  preceding  form,  and  insert]  : 

IV.  That  the  defendant,  so  being  sheiiff  as  aforesaid,  and 
Laving  the  said  order  in  his  hands  to  execute,  and  knowing  that 
the  said  G.  W.  was  in  his  county  and  view  as  aforesaid,  falsely 
and  deceitfully  returned  on  the  same  order  to  said  court,  that 
the  said  G.  W.  could  not  be  found  in  his  county. 
[Demand  of  Judgment.] 

§  564.  Cause  of  Action. — The  cause  of  action  for  a  false 
return  arises  only  on  actual  return  of  the  writ ;  but  it  relates 
back  to  the  return  day,  and  the  false  retuin  is  properly  alleged 
to  have  been  on  that  day.^  An  offi^^er  who  should  refuse  to  pro- 
ceed upon  a  second  execution  would  be  liable  for  a  false  return.' 
A  "fee  bill"  is  a  process,  and  governed  by  the  same  rule  as 
executions.^ 

»  M'chnHs  V.  STiaw.  12  W^nd  SS7. 

•  u.-s  V.  Wober,  2ti  111.  221;  Dividson  v.  Wallron,  81  Id.  120;  Moore  ▼. 
Fit'.   1)  In.l.  48.     See  ll-  w.-  v    VVIiUh,  49  Cal.  hoH. 

8  1)«  vvolt  V.  Long,  2  Gilui.  t)78;  6  id.  96;  Newkirk  v.  Chapman,  17  HL 
844;  24  Tux.  12. 


278  FORMS  OF  COMPLAINTS.  §  565. 

§  505.  Measure  of  Damages. — ^The  plaintiff  is  entitled, 
prima  facie ^  to  the  face  of  the  execution.^  And  in  case  of  loss 
of  propetty  bj'  negligence,  the  damages  are  the  value  of  the 
property  lost.^  It  is  not  essential  to  aver  any  special  damage. 
The  amount  due  on  the  judgment  is,  prima  facie,  the  measure 
of  damages. 3 

§  566.  That  Return  was  False. — The  complaint  should 
show  that  the  return  was  false,  and  that  the  respect  in  which  it 
was  false  is  material;  deceit  or  fraud  need  not  be  alleged.* 

§  567.  Valid  Judgment. — In  suca  action,  plaintiff  must 
prove  a  valid  judgment.^ 

§  568.    For  Seizing  a  Vessel. 

Form  No.  119. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges : 

I.  That  the  plaintiff  is,  and  at  the  time  hereinafter  mentioned 
was  the  owner  of  [naming  the  vessel],  her  tackle,  apparel,  and 
furniture,  and  that  he  had  chartered  the  same  to  one  A.  B. ,  for 
a  voyage  from to ,  and  back,  for dol- 
lars per  week. 

II.  That  when  said  vessel  was   at ,  on  her   voyage 

aforesaid,  and  in  the  possession  of  C.  D.,  her  master,  appointed 

by  the  plaintiff,  the  defendant,  on  or   about  the day 

of ,  18...,  forcibly  seized  the  same,  with  her  apparel, 

furniture,    and    cargo,  of    the  value   of  dollars,    and 

bn  ught  the  same  to  

III.  That  in  consequence  thereof  the  plaintiff  has  lost  the 
said  vessel,  her  apparel,  equipments,  and  furniture,  and  the 
money  which  he  was  to  receive  for  the  charter  for  the  period 

of weeks,  and  has  been  put  to  great  cost  and  expense 

in  and  about  asserting  and  maintaining  his  rights  to  said  vessel, 
her  tackle  and  furniture. 

[D  KM  AND  OF  Judgment.] 

§  569.    For  an  Escape. 

Form  No.  ISO, 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  of  issuing  the  execution  and  of  the  escape 

»Ledyard  v.  Jones,  8  Seld.   5.'50;  v.  Robertson,  6  Hill,  550;  Bank  of 

Konie  V.  (Jurtiss,  1  Hill,  275;  Pardee  Rome  v.  Curtiss,  1  Id.  27');  and  see 

V.  Robertson,  0  Id.  550;    Kellogs;  v.  Bacon  v.  Cropsey,  7  N.  Y.  195. 
Manro,  9  Johns.  300;    Weld  v.  Bart-        *  Peebles  v.  Newson,  74  N.  C.  478} 

lett.  19  Mass.  474.  Bacon  v.  Cropsey,  7  N.  Y.  195;  tCidzie 

'  MiirgHn  V.  Meyers,  14  Ohio,  538;  v.  tiackrider,  14  Johns.  195;   Hough- 

Smiih  V.  Fuller,  Id.  545.  ton  v.  Swarthout,  1  Den.  589. 

«Led.\ard  v.  Jones,  7    N.  Y.  550,        »  McDouald  V.  Buun,  8  Den.  45. 
affiiming  S.  C,  4  iSaudl^  67;  Pardee 


§  569.  PUBLIC  OFFICERS.  279 

hereinafter  mentioned,  the  defendant  was  the  sheriff  of  the 
county  of ,  in  this  state. 

II.  That  on   the day  of ,   18  ...,  in  an  action 

in  the  [superior  court  of  the  county  of   ,  in   this  state], 

brought  by  this  plaintiff  against  one  A  B.  for  embezzlement 
[or  other  cause  authorizing  arrest],  this  plaintiff  recovered  judg- 
ment, duly  given  by  said  court  against  said  A.  B.,  for 

dollars. 

III.  That  on  the day  of ,  18  ...,  an  execution 

against  the  property  of  said  A.  B.  was  duly  issued  by  the 
clerk  of  said  court  on  said  judgment,  and  thereafter  duly  re- 
turned wholly  unsatisfied. 

IV.  That  thereafter,  on  the   day  of  ,  18...,  an 

order  of  arrest  was  issued  by  the  judge  of  the  said  court 
against  the  person  of  said  A.  B.,  and  then  directed  and  de- 
livered to  the  defendant  as  said  sheriff,  whereby  he  was  required 
to  arrest  said  A.  B.,  and  commit  him  to  the  jail  of  said  county 
of ,  until  he  should  be  discharged  according  to  law. 

V.  That  thereafter  the  defendant,  as  such  sheriff,  arrested 
said  A.  B.  and  committed  him  to  jail,  pursuant  to  said  execution, 
and  order  or  arrest. 

VI.  That  thereupon  the  plaintiff  entered  into  an  under- 
taking, with  good  and  sufficient  securities,  duly  executed  and 
approved,  conditioned  for  the  payment  of  the  expenses  of  said 
A.  B.  for  necessary  food,  clothing,  and  bedding  [or  state  a  de- 
posit for  this  purpose]. 

VII.  That  in  violation  of   his   duty  as   such  sheriff,  he  has 

since,  to  wit,  on   the day  of ,   18....,  without 

the    consent   or    connivance    of     the    plaintiff    permitted    said 

A.    B.    to   escape,    to   the   damage   of  the  plaintiff,  

dollars. 

Wherefore  the  plaintiff  demands  judgment  against  the  de- 
fendant, according  to  the  statute,  for  the  debt  [or  for  damage, 
or  sum  of  money]  for  which  such  prisoner  was  committed,  to 
wit,  dollars,  with  interest  from,  etc.^ 

*  In   California    the   political   code  "2.  When   the  arrest  is    upon   an 

provides,  set-.  4182:  "A  sheriff  who  execution  or  commitment  to  enforce 

suH'tTS  the  escHpe  of  a   person  in  a  the  pnymt* iit  of  money,  he  is  liable  in 

civil  action,  without   the   consent  or  the   amouiit  expressed  in  the  cxecu- 

connivaiice  of    the    person    in  whose  tion  or  commilment. 

behiilf  the  arrest  or  imprisonment  was  "3.   When  the  arrest  is   oi  an  exe- 

made,  is  liable  as  follows:  cation  or   commitment  other  than  to 

"1.   When  the  arrest  is  upon  an  or-  enforce  the  payment  of  money,  he  is 

der  to  hold  to  bail  or  upon  surrender  liable   for   the    actual  damages    8U8- 

in  exoneration  of  bail  bef>rejufl£jnient  tained. 

he  is  liable  to  the  plaintiff  as  bail.  "4.  Upon  being  sued  for  damages 


280  FORMS  OF  COMPLAINTS.  §  570. 

§  570.  Arrest  for  Contempt. — A  complaint  in  an  action 
against  a  sheriff,  for  the  escape  from  his  custody  of  a  person 
arrested  by  him  upon  a  process  for  contempt,  which  alleges 
that  the  sheriff  ' '  suffered  and  permitted  such  person  to  escape 
and  go  at  large,"  states  a  voluntary  and  not  a  negligent  escape; 
and  an  answer  which  avers  that  such  person  may  have  "  wrong- 
fully and  privily,  and  without  the  knowledge,  permission,  or 
consent  of  this  defendant,  escaped,"  etc.,  and  that  "if  he  did 
80  escape,  he  afterwards"  returned  into  custody,  etc.,  is  insuffi- 
cient as  a  pleading,  as  it  does  not  deny,  either  generally  or 
specifically,  the  allegation  that  the  sheriff  permitted  the  pris- 
oner to  escape. 1 

§  571.  Authority  to  Release. — The  general  authority  of 
the  attorney  as  such,  is  not  sufficient  to  authorize  the  sheriff  to 
discharge  the  prisoner  upon  his  consent. ^ 

§  572.  Committed. — That  he  had  arrested  the  debtor  and 
detained  him  in  custody  in  execution,  sufficiently  imports  com- 
mitment to  jail. 3 

§  573.  Damages. — The  measure  of  damages  is  only  prima 
facie  the  amount  of  the  debt.'*  A  complaint  wliich  claimed  the 
amount  of  the  debt,  with  interest  and  costs,  without  using  the 
^orl  "damages,"  is  equivalent  to  a  declaration  in  debt.^ 

§  )74.  Escape,  Definition  of. — In  New  York,  if  a  person  ad- 
mitted to  the  liberties  of  the  jail  limits  is  without  such  limits  by 
virtue  of  a  valid  legal  process  which  affords  justification  to  the 
officer  taking  him  thence,  it  is  not  to  be  deemed  an  escai)e  within 
the  meaning  of  2  R.  S.  437,  sec.  63,  although  that  set  tion  contains 
no  express  exception  to  the  rule  that  being  without  the  bound- 
aries is  an  escape.  To  constitute  an  escape  there  must  be  some 
agency  of  the  prisoner  employed,  or  some  wringful  act  by  an- 
other against  whom  the   law  gives   a  remedy. ^     The  act  of  the 

for  an  e^scape  or  rescue,  he  may  intro-  '  Ames  v.  Webbprs,  8  Wend.  .545. 

duce  evidence  in  mitigHtioii  and  ex-  *Ginochio  v.  Ois  r.  1  Abl).  I'r.  4;S3; 

culpatioti."  Potter  V.  Lansing,  I  Johns.  215;  IJii  • 

Sec.  4183.  "He  is  liable  for  a  rescue  sell   v.  Turner,  7  M.  189;  TlmmHs  v. 

of  a  person  arrested  in  a  civil  action,  Weed,     14    Id.     2")5;    Littlcflcld    v, 

equ  illy  as  for  an  escape."  Brown,  1    Wend.   89S;    Pattcison   v. 

Sec.  4184.    "An   action  can  not  be  Westervelt,  17   Id.  543;  Fainhild    v. 

maintnined   against  the  sheriff  for  a  Cttse,  24  Id.  881  ;  Ames  v.  Wchbi-rs, 

rescue,  or  for  an  escape  of  the  person  8   LI.  545;    Hutchinson    v.  Brand,  9 

arrested  upon   an  execution  or  com-  N.  Y.  208. 

mitment,  if  after  his  rescue  or  escape  ^  Kenick    v.   Orser,    4    B^sw.  384; 

and  before  the  commencement  of  the  M'Creery  v.  Willei,  Id  *il8. 

action,  the  prisoner  returns  to  jail,  or  *  Allen  on  Sheritt*.  2'tl  ;   R'x'er  v, 

is  retaken  by  the  sheriff."  Tuber,  4  Mass.  861 ;  Cargill  v.  Taylor, 

»  Lo.sev  V.  Orser,  4  Bosw.  891.  10  Id.  206. 

•Kellogg  V.  Gilbert,  10  Johns.  220. 


§  579.  PUBLIC  OFFICERS.  281 

law,  as  well  as  the  act  of  nod  or  of  the  public  enemies,  will 
excuse  the  sheriff  in  an  action  for  escape.^ 

§  575.  Excuse. — JSothinor  but  the  act  of  God  or  public  en- 
emies will  excuse  the  sheriff  for  an  escape.'  In  California  the 
sheriff  is  liable  for  a  rescue  equally  as  for  an  escape  ;3  but  an 
action  can  not  be  maintained  for  either  after  the  prisoner  returns 
to  jail,  or  is  recaptured  by  the  sheriff.* 

§  576.  Form  of  Allegation  in  Debt.— That  thereupon, 
the  judgment  remaining  wholly  unpaid,  the  defendant  became 

indebted  to  the  plaintiff  in  the  sum  of  dollars,  the 

amount  of  said  judgment.*  This  form  is  equivalent  to  a  decla- 
ration in  debt. 

§  577.  Iad3rsement. — The  indorsement  on  the  execution  or 
writ  need  not  be  set  out.^ 

§  578,  Liability  as  Bail. — If,  after  being  arrested  upon  an 
order  to  hold  to  bail,  or  upon  a  surrender  in  exoneration  of  bail 
before  judgment,  the  defendant  escape  or  be  rescued,  the  sheriff 
shall  himself  be  liable  as  bail ;  but  he  may  discharge  himself 
from  such  liability  by  the  giving  and  justification  of  bail  at  any 
time  before  judgment.''^  Whetlier  a  judgment  creditor,  injured 
by  the  escape  of  his  debtor  from  arrest,  elects  to  sue  the  sheriff 
at  common  law  for  escape,  or  under  section  201  of  the  code 
of  procedure  of  New  York,  as  bail,  is  manifested  by  the  com- 
plaint. If  he  proceeds  against  the  sheriff  as  bail,  he  must  set 
forth  the  proceedings  to  an  l  including  the  escape,  and  allege 
that  the  defendant  is  bail,  anl  must  bear  the  appropriate  judg- 
ment. If  he  elects  to  prosecute  for  an  escape,  the  comi)laint 
will  contain  the  same  matters,  but  all  allegation  as  to  the  char- 
acter of  the  defendant  as  ba  1  should  be  omitted,  as  wholly  irrel- 
evant to  a  cause  of  action  for  an  escape.  A  complaint  in  such 
a  case,  which  makes  no  mention  of  the  defendant  as  bail,  and 
contains  nothing  manifesting  an  intention  or  election  to  hold 
him  liable  in  that  character,  is  to  be  treated  as  intending  an  ac- 
tion for  an  escape.^ 

§  579.  Negligence. — An  officer  who  negligently  permits  an 
escape  is  liable  to  the  person  injured  by  his  neglect  of  duty;^ 

>  Wilckens  V.  Wniett,  1  Keyps.  521,  225;  S.  C,  19  How   Pr.   5'i4:    so  in 

affirming   S.  C,   sub  nom.     Wickel-  Reiiick  v.   Orser,  4    B'sw.   884,   and 

hausen  v.  Willet,  12  Abb.  Pr.  319 ;  21  McCreery  v.  Willett,  Id.  048. 

How.  Pr.  40  •  Jones  v.  Cook,  1  Cow.  :-;09. 

»  Fairc-hil.l  v.  Case,  24  Wend.  381  ;  »  P<»lilical  Code.  sec.  4I«2.  subd.  1. 

Baitiev  v.  Dunning,  2  Murph.  386.  »  Smith  v.  Knj.pp,  30  N.  Y.  5S1. 

»  Pi'.litical  Code,  sec  4183.  »  Brown  v.  Genuug,  1  VVeud.  115; 

Md.  4184.  87111.257. 

•Uarnes  v.  Willett,  11  Abb.    Pr. 


282  FORMS  OF  COMPLAINTS.  §  580. 

and  an  escape  from  a  deputy  may  be  declared  on  as  an  escape 
from  the  sheriff.^ 

§  580.  Voluntary. — A  complaint  which  alleges  that  "  the 
sheriff  suffered  and  permitted  such  person  to  escape  and  go  at 
large,"  states  a  voluntary  and  not  a  negligent  escape. ^  Under 
the  averment  that  lie  voluntarily  suffered  the  party  to  escape,  a 
negligent  escape  may  be  proved  ;3  and  evidence  of  a  negligent 
escape  sux)poits  an  action  for  a  voluntary  one.* 


CHAPTER    X. 

RECEIVERS. 

§  581.    By  a  Receiver  Appointed  Fending  Litigation. 

Form  No.  121. 

[State  and  County.]  [Couet.] 

A.  B.,  Receiver  of  the  Property  of  "^ 

C.  D.,  Plaintiff,  / 

against  f 

E.  F.,  Defendant.  ) 

The  plaintiff,  as  receiver  of  the  projperty  of  C.  D.,  complains, 
and  alleges: 

I.  [State  cause  of  action.] 

II.  That  on  the  day  of ,  18  ...,  at  the  city  and 

county  of  San  Francisco,  and  state  of  California,  in  an  action 

then  pending  in  the  superior  court  of  the ,  county  of 

,  state  of  ,  wherein  C.  D.  was  plaintiff  and  E. 

F.  was  defendant,  upon  an  application  made  by  the  said  A.  B., 
and  by  order  duly  made  by  said  court  [or  judge],  this  plaintiff 
was  appointed  receiver  of  the  property  of  the  said  C.  D.,  here- 
inafter described,  to  wit:  [Describe  property  so  as  to  show  that 
the  cause  of  action  is  embraced.] 

III.  That  thereafter,  and  before  the  commencement  of  the 
present  action,  he  gave  his  bond  required  by  the  said  order,  as 
such  receiver,  approved  by  the  said  judge,  which  bond,  with  such 

approval,  is  on  file  in  the  said  court,  and  were  so  filed 

prior  to  the  commencement  of  this  action. 

IV.  That  on  the day  of ,  18...,  said  receiver  duly 

obtained  leave  of  the  said  court  [the  court  appointing  him]  to 

bring  this  action. 

[Demand  of  Judgment] 

1  'Skinner  v.  White,  9  N.  H.  204. 

*  Ijoosf'v  V.  Or^er.  4  Bosw.  891. 

»2T.  R.  12!1:  O'Xeil  v.  Mnrs..ii,  5  Burr.  2814;  1  Saund.  35. 

*  tJkiaiiur  V.  VVUite.  92<.  H.  20i, 


§  583.  KECEIVERS.  283 

§  582.  Motion  for  Appointni3nt  of  R3C3iver. 

Fwm  No.  12Z. 
[Title.] 

Pla  atiff  moves  that  a  receiver  be  appointed  in  this  action  on 

the  following  grounds  [stating  them]  : 

[Signature.] 

§  583,  AppDintmsnt  of  R3oeiver. — Courts  of  equity  have 
the  power  to  appoint  receivers  and  to  order  tliem  to  ta'ie  pos- 
session of  the  property  in  controversy,  whether  in  tlie  iin  nediate 
possession  of  the  defendant  or  bis  agents ;  and  in  proper  cases, 
they  can  also  order  the  defentlant's  a-^ents  or  employees,  al- 
though not  parties  to  the  record,  to  deliver  the  spaoiSj  property 
to  the  receiver.^  But  thoy  ca  i  not  app  int  a  receiver  an  I  de- 
cree a  sale  of  the  property  an  I  affairs  of  a  corporation. "^  Such 
a  decree  would  necessarily  result  in  a  diss  )lution  of  the  corpo- 
ration.^  Under  subdivision  5,  setjtioa  564,  Cilifornia  Code  C. 
P.,  a  receiver  may  be  app  nnted  wlien  a  corporatioi  his  been 
dissolved,  or  is  insolvent,  or  in  imminent  danger  of  insolvency, 
or  has  forfeited  its  corporate  rights.  Where  the  allegations  of 
a  bill  are  general,  ani  the  equities  are  fully  d.mied,  such  a  case 
is  not  presented  as  will  justify  the  appointmjnt  of  a  receiver, 
and  the  withdrawal  of  the  property  from  the  han  Is  of  ne  inti- 
mately acquainted  with  all  of  the  affairs  of  the  cone  'rn,  and 
placing  it  in  the  hands  of  another  who  may  not  be  equally  com- 
petent to  manage  the  business.'* 

In  California,  the  code  provides  that  a  receiver  may  be  ap- 
pointed by  the  court  in  which  the  action  is  pending,  or  by  a 
judge  thereof: 

"1.  In  an  action  by  a  vendor  to  vacate  a  fraudulent  purchase 
of  property,  or  by  a  creditor  to  subject  any  property  or  fund 
to  his  claim,  or  between  partners,  or  others  jointly  owniiTTjor  in- 
terested in  any  fund,  on  the  application  of  the  plain  iff.  or  of 
any  party  whose  rights  to  or  interest  in  the  property  or  fund, 
or  proceeds  thereof,  is  probable,  and  where  it  is  shown  that  the 
property  or  fund  is  in  danger  of  being  lost,  removed,  or  mate- 
rially injured. 

"2.  In  an  action  by  a  mortgagee  for  the  foreclosure  of  his 
mortgage,  and  the  sale  of  the  mortgaged  property,  where  it  ap- 
pears that  the  m^rtgagad  property  is  in  danger  of  bein^  lost, 
removed,  or  materially  injured,  or  that  the  condition  of  the 
mortgage  has  not  been  performed,  and  that  the  property  is 
probably  insuifioient  to  discharge  the  mortgage  debt. 

»  Ex  parte  Cohen.  5  Cal.  494.  «  M. 

«  i^eail  V.  Hill,  16  Ual.  148.  *  Williamson  y.  Monroe,  3  Cal.  883. 


284  FORMS  OF  COMPLAINTS.  §  584. 

"3.  After  judo^ment,  to  carry  the  judgment  into  effect. 

"4.  Aftsr  judgaent,  to  dispose  of  the  property  according  to 
the  judgment,  or  to  preserve  it  daring  the  pendency  of  an  ap- 
peal, or  in  pro3ee  lings  in  aid  of  execution,  when  an  execution 
has  been  return;!  unsatisfied,  or  when  the  judgment  debtor 
refuses  to  ap[)ly  his  property  in  satisfaction  of  the  judgment. 

"5.  In  cases  where  a  corporation  has  been  dissolved,  or  is 
insolvent,  or  in  imminent  danger  of  insolvency,  or  has  forfeited 
its  corporate  rights. 

"  6.  In  all  other  cases  where  receivers  have  heretofore  been 
appointed  by  the  usages  of  courts  of  equity."  ^ 

In  construing  this  provision  of  the  California  code  it  has  been 
held  that  subdivision  6  thereof  is  but  declaratory  of  the  equity 
jurisdicti  )n  conferred  on  the  courts  by  the  constitution,  and  in- 
cludes only  the  suits  in  which  it  has  been  the  usage  of  courts  of 
equity  to  appoint  a  receiver;  their  jurisdiction  in  this  respect 
would  have  been  the  same  in  the  absence  of  the  statute.  It 
does  not  incliule  the  power  to  appoint  a  receiver  in  an  action  of 
ejectment,  and  an  order  mi'cing  an  appoinlmint  sh  )uld  be 
annulled;^  nor  does  it  embrace  the  power  to  ap[)oint  a  receiver 
of  the  property  of  a  corporation  in  aid  of  a  suit  prosecuted 
against  tiie  corporation  by  a  private  person ;  such  power  must 
be  derived  from  express  statute.  If  a  receiver  is  a opoi  ited  in 
such  a  suit,  the  appointment  will  be  annulled  on  certiorari.^  The 
appointment  of  a  receiver  may  be  made  upon  an  ea;  parie  a;)pli- 
cation  at  chambers.'* 

§  584.  Allej;iii3  Appointm3nt. — A  receiver  suing  by  virtue 
of  his  title  and  authority  should  state  the  tim;  an.l  pace  of  his 
appointmint,  an  I  distinctly  aver  that  he  has  been  a[)pointe  I  by 
an  order  of  the  court.^  Where  a  receiver  would  make  title  to  a 
chose  in  ajtion,  he  m  ist  set  forth  the  facts  showin  ^  his  appoint- 
ment. It  will  not  be  sufficient  to  aver  that  he  was  duly  ap- 
pointed,^ So  describing  himself  as  "  having  been  duly  appointed 
receiver  of,  etc.,  and  bringing  this  suit  by  order  of  the  supreme 
court,"    is  insulfloient   on  demurrer.'''     And   where    a    plaintiff 

1  Ciilifornia  Co'le  Civ.  Proc,    socs.  Intosh,  23  B:irb.  591 ;  Hobart  v.  Frost, 

664-5)9:   New  Y  rk   Code,  sec.  241;  SDu.t,  672;  While  v.   L..w,  7  Barb. 

Ohio  C.idc,  sec.  2')8.  20(5;  Dayton  v.  Connah,  18How.  Pr. 

*  BaleuiHuv.  Superior  Court,  54  Cal.  826. 

285.  «Gillett  v.  Fairphild,   4  Don.   80; 

8  La  8')ci6t6    Fran9aise  etc.  v.  Flf-  While  v.  .Jov,  8  Kern.  86;  Sluart,  v. 

teenih  Uislrict  Court,  58  Cal.  495.  Bt^ebe,    28    limb.  34;   Tuckerman  v. 

_  *  Real   Estate  Association  v.  Supe-  Brown.  11  Abb.  Pr.  389. 

rior  Court,  60  Cal.  228.  '  See  auihoritifs  ciled   above,  note 

'  While  V.  Low,  7  liarb.  201 ;  Gillett  1 ;  see  also  Dayton  v.  Connah,  18  How. 

V.  Fairuhild,  4  Dqii.  80;  Bangs  v.  Mc-  Pr.  326. 


§  587.  RECEIVEPwS.  285 

claims  title  to  a  note  sued  on  by  virtue  of  his  appo'ntraent  as 
receiver  of  an  insurance  company,  the  note  being  payable  to  a 
company  bearing  a  name  different  from  that  of  the  conpnny  of 
which  he  is  receiver,  it  is  necessary  that  he  should,  I13'  proper 
averments,  show  that  the  note  is  a  part  of  the  assets  of  the  com- 
pany of  which  he  has  been  appointed  receiver.^  If  the  change 
of  name  was  by  reorganization  of  the  company  under  the  general 
*  act,  a  general  averment  of  the  fact  of  reorganizati  n  is  enough. 
But  alleging  that  plaintiff  is  receiver  of,  etc.,  appointed  by  the 
supreme  court  Dy  an  order  made  on  a  specified  day,  on  condition 
of  filing  security,  and  that  such  security  was  given  accordingly, 
states  enough  to  enable  the  defendant  to  take  issue  upon  the 
legality  of  the  plaintiff  's  appointment.* 

§  585.  Appointment  Pending  Litigation. — When  either 
party  establishes  a  prima  facie  right  to  the  property,  or  to  an 
interest  in  the  property,  the  subject  of  the  action,  and  which  is 
in  possession  of  an  adverse  party,  and  the  property  or  its  rents 
and  profits  are  in  danger  of  being  lost  or  materially  injured  or 
impaired,  the  court  or  a  judge  thereof  may  appoint  a  receiver.^ 
In  a  foreclosure  suit,  the  plaintiff  has  no  right  to  have  a  receiver 
of  rents  and  profits  of  the  mortgaged  property  appointed  pend- 
ing a  litigation;^  unless  it  appears  that  the  condition  of  the 
mortgnge  has  not  been  performed,  and  that  the  property  is 
probably  insufficient  to  discharge  the  mortgage  debt.^ 

§  586.  Appointment  after  Judgment. — In  an  action  to 
recover  possession  of  real  estate,  and  while  a  motion  for  a  new 
trial  is  pending,  a  receiver  of  the  rents  and  proceeds  of  the 
property  in  dispute  may  be  appointed,  if  the  facts  of  the  case  are 
such  as  warrant  it.  If  the  defendant  in  possession  is  receiving 
monthly  large  sums  of  money  from  the  sale  of  the  waters  of 
mineral  springs  on  the  land,  and  is  insolvent,  a  receiver  may 
be  appointed,  pending  the  further  litigation,  on  motion  for  a 
new  trial  and  appeal.^  , 

§  587.  Bound  by  Order   of  Court. — Receivers,  or  other 

*  Hyatt  V.  McMiihon,  25  Barb.  457.  name,   and  without  averring  hiB  ap- 

'  Stewart  v.    Beebe,  28    Barb.  34;  pointment,  see    White  v.  Joy,  13  N. 

compare  Crowell  v.  Church,  7  Abb.  1.83;  Bank  of  Niagara  v.  Johnson,  8 

Pr.  205,  note.     Of  the  proper  mode  of  Wend.  645;  Haxtun   v.  Bishop,  3  Id. 

complaining  in  an  action  by  a  receiver,  18. 

of  departure  from  the  complaint  in  the  *  Cal.  Code  Proc,  sec.  564. 

reply,  and  of  the  proper  mode  of  seek-  *  Guy  v.  Ide,  6  Cal.  101 ;  Meyer  v. 

ing  relief  where  the  reply  departs  from  Seebald,  11  Abb.  (N.  S.)  326,  note. 

the  complaint,   see   White  ".   Joy,  8  *  La  Soci6t6  Fran9ai8e   etc.  v.  Sel- 

Kern.  83,  reversing  S.  C,  11  How.  Pr.  heimer,  57  Cal.  623. 

86;  2  Abb.  Pr.  548.    As  to  the  cases  'Whitney  v.  Buikman,  26  Cal.  447; 

in  which  a  receiver  may  sue  in  his  own  see  Cal.  Code  C.  P.,  sec.  664. 


286  FORMS  OP  COMPLAINTS.  §  588. 

custoflians  of  money  in  the  hands  of  a  court,  as  they  are  bound 
to  obey  orders  of  the  court  in  their  relation  to  the  fund,  as  well 
as  re^rards  its  safe  custody  as  its  return,  are  co-relatively  entitled 
to  the  protection  of  the  court  against  loss  for  disbursements 
whicli  were  necessary  and  proper  and  such  as  a  reasonable  and 
prudent  man,  acting  as  receiver,  would  have  been  justified  in 
expending.^ 

§  588.  Disbursements  of  Receiver. — An  order  of  court 
directing  a  referee  "  to  ascertain  and  report  the  amount  of  dis- 
bursements and  expenses  made  with  or  under  the  direction  and 
authority  of  the  court,"  by  a  receiver  or  custodian  of  money  in 
the  hands  of  the  court,  is  too  narrow  to  do  him  justice,  and 
should  be  so  enlarged  as  to  allow  for  all  reasonable  and  proper 
expenses  incident  to  the  receivership. ^  And  this,  although  the 
claim  is  for  disbursements  incurred  by  the  custodian  of  the 
fund  under  an  appointment  as  assignee  in  a  proceeding  in 
insolvency  which  was  afterwards  held  to  be  void.^ 

§  589.  Discretion  of  Court. — The  appointment  of  a  re- 
ceiver rests  in  the  sound  discretion  of  the  court  upon  a  view  of 
all  the  facts;  one  of  which  is,  that  the  party  asking  the  appoint- 
ment should  make  out  a  prima  facie  case ;  and  after  an  ex  parte 
appointment  has  been  made,  the  order  may  be  vacated,  either 
before  or  after  the  trial,  upon  a  proper  showing.^ 

§  590.  Leave  to  Sue  and  be  Sued. — Unless  expressly  au- 
thorized by  the  statute  under  which  the  appointment  is  made, 
a  receiver  can  not  sue  or  be  sued  without  leave  of  court. ^  And 
it  has  been  held  that  the  power  to  collect  is  not  sufficient  to 
authorize  him  to  sue.^  Notice  of  the  application  to  the  court 
appointing,  for  leave  to  sue  the  receiver,  need  not  be  given  to 
him,  nor  to  the  parties  to  the  action  in  which  he  was  appointed.' 
Where  leave  to  sue  or  be  sued  is  required  to  be  obtained,  that 
the  same  was  obtained  should  be  alleged  in  the  complaint. 
Even  if  this  allegation  is  not  held  necessary  by  the  courts  in 
some  of  the  states,  the  safer  practice  is  to  make  it.® 

»  Adams  v.   Haskell,    6  CuL  475;  Ohio  St.   137;Hi£fhon  Rpc.  167;  De- 

Guar  lian  Savi  liis  lint.   v.   Bowling  Gi-oot  v.   Jay,  80  Barb.  483;  Cal.  Code 

Gieen  S.  [.,  i.6  l?arb.  275.  Civil  Proc,  sec.  4')8. 

2  A.lams  V.  11  iskull,  *>  «Jal.  475.  •  Screven  v.  Clark,  48  Ga.  41;  King 

•  See  also  O'MaUoney  v.  Belmont,  v.  Cutts,  24  Wis.  627. 

e''  V.  Y.  188.  '  Potter  v.  Bunnell,  20  Ohio  St  150. 

•  Copper  Hill  Min.  Co.  v.  Spencer,  *  Scofield  v.  Doscher,  72  N.  Y.  491 ; 
25  *.  al.  16.  Watts  v.  Everett,  47  Iowa,  2'i9.     See 

•  King  V.  Cutts,  24  Wis.  627;  Battle  contra,  a  dictum  in  Finuh  v  Carpen- 
V.  Davis,  66  N.  C.  262;  Screven  v.  ter,  6  Abb.  Pr.  225 ;  compare  Cal.  Code 
Clark,  48  Ga.  41 ;  Miami  etc.  v.  Gano,  C.  P.  6t>8. 

IS  Ohio,  269 ;  Murphy  v.  Holbrook,  20 


§  593.  RECEIVERS.  287^ 

§  591.  Powers,  Duties,  and  Liabilities  of  Receiver. — In 

California,  the  code  provides  that  the  receiver  has,  under  the 
control  of  the  court,  power  to  bring  and  defend  actions  in  his 
own  name,  as  receiver;  to  take  and  keep  possession  of  the  prop- 
erty; to  receive  rents,  colli  ct  debts;  to  compound  for  and  com- 
promise the  same ;  to  make  transfers,  and  generally  to  do  such 
acts  respecting  the  property  as  the  courts  m:iy  authorize. ^  The 
code  of  Ohio  contains  the  same  provision. ^  A  receiver  may 
employ  counsel.^  Upon  the  application  of  the  receiver,  in  the 
suit  for  dissolution,  he  can  obtain  the  necessary  proceedings  for 
procuring  a  correct  application  of  the  balance  of  a  judgment 
held  by  the  partnership  against  a  third  party,  after  paying  the 
judgment  creditor  of  the  partnership.^  A  receiver  can  pay  out 
nothing,  except  on  an  order  of  the  court ;  but  there  are  excep- 
tions to  the  rule ;  nor  will  he  be  denied  reimbursement  in  every 
case  in  which  he  neglects  to  obtain  the  order,  especially  in  a 
court  of  equity.^  It  will  not  be  presumed  that  the  receiver  has 
transcended  his  duties,  and  taken  possession  of  property  to  which 
he  was  not  entitled ;  nor  is  the  opposite  party  entitled  to  have 
issues  framed  and  submitted  to  a  referee  or  jury  to  ascertain  the 
ownership  of  the  money  in  the  receiver's  hands. ^  A  receiver  is 
personally  liable  to  persons  sustaining  loss  or  injury  by  or  through 
his  own  neglect  or  misconduct;  but  for  the  neglect  or  miscon- 
duct of  those  employed  by  him  in  performance  of  the  duties  of 
his  trust,  he  is  liable  only  in  his  official  capacity,  and  the  judg- 
ment against  him,  if  any,  must  be  made  payable  out  of  the  funds 
in  his  own  hands  as  receiver.'''  In  this  case  it  was  held,  that  where 
a  railroad  was  operated  by  a  receiver,  a  party  injured  may,  by 
leave  of  the  court  appointing  the  receiver,  maintain  an  action 
against  him  as  such,  for  injuries  sustained,  and  that  it  is  no  de- 
fense in  such  action  that  the  receiver  was  a  public  officer,  or  that 
he  was  an  agent  or  trustee. 

§  592.  Mining  Claims.  —  The  purchaser  at  a  judicial  sale  of 
a  mining  claim  may,  where  the  judgment  debtor  remains  in  pos- 
session, working  the  claim,  and  is  insolvent,  have  a  receiver 
appointed  to  take  charge  of  the  proceeds  during  the  period 
allowed  by  the  statute  for  redemption.* 

§  593.  On  Application  for  Injunction.  —  If  notice  is  given 

1  Cal.   Code  C.  P.,  sec.  568.  •  Whitney  v.  Bnckman,  26  Cal.451. 

'  Ohio  Code,  sec.  5590.  ^  Camp  v.    Bjirnev.   4  Hun,  373; 

•  Adams  v.  Woods,  8  Cal.  815.  see,   also.   Miller  v.   Loe^i,   64  Barb. 

«  AdHTAS  V.  H.ickett,  7Cal.  187.  454;  Potter  v.   Bunnell,   20  Ohio  St. 

»  Adfttns  V.  Wo'>d8,    15  Cal.  207;  151;  Murphy  v.  HoU.ro..k.  Id.  187. 
Adams  v.  Haskell,  6  Id.  475.  •  Hill  v.  Taylor,  22  Cal.  lyl. 


288  FORMS  OF  COMPLAINTS.  §  594. 

of  an  application  for  an  injunction,  and  the  petition  prays  for  an 
injunction,  tlie  jndge,  on  tiie  liearin^,  mxy  appoint  a  receiver,  if 
the  facts  make  out  a  proper  case  for  a  receiver,  and  mo  ob- 
jection is  made  on  the  ground  of  want  of  notice  of  the  applica- 
tion.^ 

§  594.  Satting  aside  Assignment. — Where  a  receiver  brings 
an  action  to  set  aside  an  assignment,  he  must  state  in  his  com- 
plaint the  equity  of  the  party  whose  rights  he  represents,  to 
maintain  the  action  which  he  attempts  to  prosecute.  A  receiver 
in  general  is  not  clothed  with  any  right  to  maintain  an  action 
which  the  parties  or  the  estate  which  he  represents  could  not 
maintain. 2  And  he  must  show  a  cause  of  action  existing  in  those 
parties.  3 

§  595.  Suit  against. — A  suit  can  not  be  brought  against  a 
receiver  when  the  judgment  would  disturb  t'le  receiver's  pos- 
session of  the  pro;)erty ;  nor  can  a  creditor  bring  an  action 
against  him  to  litigate  his  claim.  All  such  questions  mny  be 
deiermined  by  the  court  by  au  inteivention  in  the  pending  liti- 
gation."* 

§  596.  Transfer  to  Receiver. — In  California  the  transfer 
to  a  receiver  by  order  of  court  of  the  effects  of  an  insolvent  in 
the  suit  of  a  judgment  creditor,  is  not  an  assignment  absolutely 
void  under  the  insolvent  act  of  1852,  according  to  any  decision  of 
the  supreme  court,  but  only  void  against  the  claim  of  creditors.^ 
Where  it  appears  that  the  partners,  parties  to  the  suit  for  a  dis- 
solution, held  a  judgment  against  a  third  party  which  was  never 
reduced  to  the  possession  nor  under  the  control  of  the  receiver, 
the  appointment  of  the  receiver  would  not  operate  as  an  assign- 
ment or  transfer  of  any  property  not  so  reduced  to  possession 
wiihin  a  easonable  time.^ 

§  597.  Vacating  Order  of  Appointment. — The  pendency 
of  a  motion  for  a  new  trial  does  not  operate  as  a  stay  of  proceed- 
ings, so  as  to  deprive  the  court  of  the  power  of  vacating  an 
order  appointing  a  receiver  made  before  the  trial.''  The  court 
which  first  acquires  jurisdiction  and  appoints  a  receiver  of  a 
fund,  has  the  whole  jurisdiction  thereof,  and  is  bound  to  ad- 
minister it.* 

*  Whitney   v.    Buckman,   26    Cal.  *  Spinning  v.   Ohio  Life  Ins,  and 

447.  Trust  Co.,  2  Dis.  336, 

8  Coope  V.  Bowles,  42  Barb.  87;  S.  »  NMcrlee  v.  Lvman,  14  Cal.  450. 

C,  18  Abb.  Pr.  442 ;  and  28  How  Pr.  •  Adams  v.  Haskell,  6  Cxi.  1 13. 

10.  ^  Copper  Hill  Min.  Co.  v.  Sppncer.  25 

»  Coope  V.  BdwIps,  42  Barb.  87 ;  8.  Cal.  15 ;  Wilson  v.  Barney.  6  Hun,  257. 

C,  18  Abb.  Pr.  442;  and  23  How.  «  o'Mahoney  t.  Belmont,  62  H.Y. 

Pr.lO.  133. 


§  601.  RECEIVERS.  289 

§  o98.  Th3  Same — Appointed  ia  Supplementary  Pro- 
ceedings. 

Form  No.  123. 

[TiTLK.] 

The  plaintiff,  as  receiver  of  the  property  of  C.  D.,  complains, 
and  alleges : 

I.  [State  cause  of  action.] 

II.  That  on  the day  of ,  18...,  at ,  npon 

an  application  made  by  L.  M.,  a  judgment  creditor  of  sai<l  C.  D., 
in  proceedings  supplementary  to  execution,  and  b}*^  an  order  or 
determination   then  duly  made  by  the  Hon.  G.  II.,  judge  of  the 

superior  court  for  the  county  of ,  state  of  ,  the 

plaintiff  was  appointed  receiver  of  the  property  of  said  C.  D. 

III.  That  thereafter,  and  before  the  commencement  of  this 
action,  he  gave  his  bond,  required  by  said  order,  etc.  [as  in  pre- 
ceding form]. 

IV.  [Allege  permission  to  sue  as  in  preceding  form.] 

[Demand  of  Judgmknt.] 

§  599.  Fund  in  Hands  of  Trustees. — "Where  a  complaint 
by  a  receiver,  appointed  in  supplementary  proceedings,  alleged 
that  a  fmid  was  given  by  will  to  the  defendants  as  trustees,  in 
trust,  to  keep  the  same  invested  and  pay  the  interest  to  the  ex- 
ecution debtor  during  his  life ;  that  the  defendants  had  collected 
interest  since  the  appointment  of  the  plaintiff  as  receiver,  but 
refused  to  pay  the  same  over  to  the  plaintiff,  but  did  not  aver 
that  any  part  of  the  interest  was  in  the  hands  of  the  defend- 
ants, as  a  surplus  above  what  was  necessary  for  the  debtor's 
support;  it  was  held  that  the  complaint  did  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action.^  The  interest  of  the  debtor 
in  the  income  of  the  fund  under  such  a  trust  is  only  subject  to 
the  claims  of  creditors  to  the  extent  of  a  surplus  over  and  above 
what  is  necessary  or  proper  for  his  maintenance  and  support. 
The  court  can  not  infer  that  such  a  surplus  exists.  It  is  the  duty 
of  the  pleader  to  show  by  proper  averments  that  such  facts  exist.* 

§  600.  Supplementary  Proceedings — In  proceedings  sup- 
plementary to  execution,  the  court  may  appoint  a  receiver  when 
it  has  all  the  parties  before  it.^ 

§  601.  Another  Form  —  Setting  out  Proceedings  at 
Length. 

Form  No.  124. 
[Title.] 

The  plaintiff,  as  receiver  of  the  property  of  C.  D.,  complains, 
and  alleges: 

»  Graff  V.  Bonnett,  81  N.  Y.  9.       'Id.         «  Hathaway  v.  Bradd,  28  Cal.  686. 
EsTKi,  Vol.  1—19. 


290  FORMS  OF  COMPLAINTS.  §   601. 

I.  ThatE.  F.  and  G.  H.,  of  San  Francisco,  state  of  California, 
survivors  of  C.  D.,  deceased,  in  an  action  brought  by  them  in  the 

superior  court  of  the  county  of  ,  state  of  California, 

against  J.  K.,  obtained  judgment  against  the  defendant  in  that 
action,  on,  etc.,  for  the  sum  of,  etc.,  which  judgment  was  en- 
tered by  the  clerk  of  the  county  of ,  on  the  day  aforesaid, 

and  the  roll  filed  and  judgment  docketed  in  said  clerk's  office  on 
that  day. 

II.  That  on,  etc.,  an  execution  therefor  was  duly  issued  and 

delivered  to   the  sheriff  of  said  county  of ,  commanding 

him  to  make  said,  etc.,  with  interest  from,  etc.,  and  make  return 
of  his  doings  in  the  premises ;  that  said  sheriff  afterward,  and  on, 
etc.,  returned  said  execution  to  the  office  of  the  clerk  of  the  countj' 
of ,  with  his  return  thereon  indorsed,  showing  the  execu- 
tion wholly  unsatisfied. 

III.  That  afterwards,  and  on,  etc.,  the  plaintiff  in  said  action 
caused  an  affidavit  to  be  made,  setting  forth  the  above  facts,  as 
to  obtaining  said  judgment,  the  filing  of  transcript,  the  issuing 
and  return  of  said  execution,  and  that  the  said  judgment  re- 
mained wholly  unsatisfied,  and  presented  the  same  to  Honorable 

J.  D.,  judge  of  the  superior  court   of  the   county  of ,  on 

the  same  day,  who  thereupon,  and  on,  etc.,  made  an  order  re- 
quiring said  judgment  debtor  to  appear  before  L.  M.,  Esq., 
referee  thereby  appointed,  at  the  office  of  said  L.  M.,  in,  etc.,  on, 

etc.,  at o'clock  in  the noon,  to  testify  concerning  his 

property ;  and  said  N.  O.  by  said  order  was  further  forbidden  to 
transfer,  or  in  any  manner  dispose  of,  or  interfere  with  any  prop- 
erty, moneys,  or  things  in  action  belonging  to  him  until  further 
order  in  the  premises. 

IV.  That  said  order  was  personally  served  on  said  defendant 
on  the  same  day,  and  said  defendant  appeared  before  said 
referee  at  the  time  and  place  in  said  order  specified,  and  sever- 
ally submitted  to  an  examination  under  oath,  and  testified  as  to 
his  property,  which  examination  was  on  the  same  day,  by  said 
referee,  certified  to  said  judge,  who,  thereupon,  by  an  order, 
appointed  A.  B.,  of,  etc.,  this  plaintiff,  receiver  of  all  the 
debts,  property,  effects,  equitable  interests,  and  things  in  action 
of  said  C.  D.,  and  further  ordered  this  plaintiff,  before  entering 
upon  the  execution  of  his  trust,   execute  to  the  clerk^  of  this 

>  UndPT  section  567,  California  Code  direct.  The  aliepjation  of  the  making 
of  Civil  Proci'dure,  the  undertaking  and  filing  of  the  b  >nd  should  follow 
must  be  ma  ie  to  such  person  and  in  the  order  of  the  court  or  j  udjje  direct- 
such  Situ  as  the  court  or  judge  may  ing  the  bond  to  be  given. 


§  604.  RECEIVERS.  291 

court  a  bond,  with  sufficient  sureties,  to  be  by  said  judge  ap- 
proved, in  the  penal  sum  of ,  conditioned  for  the  faith- 
ful performance  and  discharge  of  the  duties  of  such  trust,  and 
that  this   plaintiff,  upon  filing  such    bond    in  the  office  of  the 

clerk  of  the  county  of ,  be  invested  with  all  rights  and 

powers  as  receiver  according  to  law.  The  said  C.  D.  was  therein 
and  thereby  enjoined  and  restrained  from  making  any  disposi- 
tion of  or  interfering  with  his  property,  equitable  interests, 
things  in  action,  or  any  of  them,  except  in  obedience  to  said 
order,  until  further  order  in  the  premises. 

V.  That  on,  etc.,  he  executed  a  bond  with  sureties,  as  re- 
quired by  said  order,  and  the  rules  and  practice  of  this  court, 
which  was  approved  by  said  judge,  and  filed  in  the  office  of  the 
clerk  of  the  county  of,  etc. 

VI.  [Allege  cause  of  action. ]i 

[Demand  of  Judgment.] 

§  602.    By  Receiver  of  Dissolved  Corporation. 

Form  No.  125. 
[Title.] 

The  plaintiff,  as  receiver  of  the company,  compTains, 

and  alleges : 

I.  [State  a  cause  of  action  accruing  to  the  corporation  ] 

II.  That   on    the day   of ,  18...,  at , 

upon  an  application   made  upon  occasion   of  the  insolvency  of 

the   said company    [or    state    any    other  reason  which 

may  exist],  and  by  an  order  of  the  Hon ,  judge  of  the 

superior   court  of  the   county  of ,  state   of  California, 

the  plaintiff  was  appointed  receiver  of  the  property,  and  effects, 

and  things  in  action  of  the   said company,  pursuant  to 

statute. 

III.  [Allege  qualification  and  permission  to   sue  as   in  form 

No.  121.] 

[Demand  op  Judgment.] 

§  603.  Occasion  of  Dissolution. — ^The  occasion  of  the  dis- 
solution should  be  shown. ^ 

§  604.  By  Receiver  of  Mutual  Insurance  Company  on 
Fremium  Note. 

Form  No.  126. 
[Title.] 

The  plaintiff,  as  receiver  of  the company,  complains, 

and  alleges : 

•  The  above  form  is  sabstantially  from  McCall'a  Forms,  270,  See  Cal.  Code, 
sec.  "iGl,  subd.  3 ;  N.  Y.  Code,  sec.  244,  subd.  6. 

*  Gillet  V.  Fairchild,  4  Dea.  80;  see  Tuckerman  v.  Brown,  11  Abb.  Pr.  889. 


292  FORMS  OF  COMPLAINTS.  §   604. 

I.  That  the    Insurance  Company    was   at  the    time 

hereinafter  mentioned  a  mutual  insuianee  company,  dnly  in- 
corporated as  such  under  and  by  virtue  of  an  act  of  the  legisla- 
ture of  this  state,  entitled  [title  of  act],  and  was  duly  organized 
under  said  act,  to  make,  etc.      [State  object  of  incorporation.] 

II.  That  on  the day  of  ,  18...,  at  the  general 

term  of  the   superior  court,  in  and  for  the  county  of  , 

state  of  California,  this  plaintiff  was  a])pointed  receiver  of  the 
stock,  property,  things  in  action,  and  effects  of  the  said  company 
[upon  the  occasion  of  its  voluntary  dissolution,  or  otherwise]. 

III.  That  thereafter,  and  prior  to  the day  of  , 

18,..,  the  plaintiff  gave  the  requisite  security  as  said  receiver, 
and  filed  the  same   in  the  clerk's  office  of  the  said  county  of 

,  and  thereupon   entered  upon  the  duties  of  his  office 

as  such  receiver,  and  is  now,  as  said  receiver,  in  possession  of 
the  stock,  property,  things  in  action,  and  effects  of  the  said 
corporation. 

IV.  That  the  defendant  made  his  certain  note  in  writing, 
commonly  called  a  premium  note;  and,  at  the  date  in  said  note 
mentioned,  delivered  the  said  note,  of  which  the  following  is  a 
copy,  to  the  said  company.     [Copy  note.] 

V.  That  said  policy  of  insurance  expired  in  one  year  from 
the  date  thereof,  and  said  note  formed  part  of  the  capital  stock 
of  said  company,  and  which  said  policy  of  insurance  was  issued 
and  delivered  to  the  said  defendant  at  the  date  mentioned  in 
the  said  note,  and  thereby  the  said  defendant  became  a  member 
of  said  company,  down  to  and  including  the  time  for  wliich 
said  note  was  assessed  by  said  plaintiff  as  said  receiver,  to  pay 
the  losses  and  liabilities  of  said  company,  incurred  whilst  said 
policy  and  note  were  in  full  force  and  effect. 

VI.  That  after  he  had  entered  on  the  duties  as  said  receiver, 
he    ascertained   the   amount  of  the  losses   by  risks,    and  other 

liabilities    of  said  company;  and  as  said  receiver,   at  

aforesaid,  on  the day  of 18...,  did  settle  and  de- 
termine the  sums  to  be  paid  by  the  several  members  of  said 
company,  as  their  respective  portions  of  such  losses  and  lia- 
bilities, in  proportion  to  the  unpaid  amount  of  his  or  their 
deposit  note  or  notes,  agreeably  to  the  charter  and  by-laws  of 
said  company,  and  did  thereafter  on  said  note  assess  the  sum  so 
settled  and  determined  upon  to  be  paid  by  the  several  members  of 
said  company,  liable  to  be  assessed  therefor. 

VII.  That  after  the  making  of  the  said  assessment,  as  said 
receiver,  he  published  notice  thereof  in  the  .,  a  news- 


§  604.  RECEIVERS.  293 

paper  published  in  the  county  of ,  once  in  each  week 

for.  days,  commencing  on  the day  of , 

18....,   and   that  previous   to  the  day  of ,  18...., 

he  caused  notice  to  be  served  on  each  person  assessed,  of  the 
amount  so  settled,  determined,  and  assessed  to  be  paid  by  him 
on  his  premium  note,  by  depositing  such  notice  in  the  post- 
office  at ,  directed  to  each  person  assessed  at  his  place 

of  residence,  as  far  as  such  place  of  residence  could  be  ascertained 
from  the  books  of  said  company,  requiring  said  assessment  to 
be  paid  in days  after  service  of  such  notice. 

VIII.  That   at  a  term   of  the  superior  court  of  the  county 

of ,held  at  the  court-house,  in  the  city  and  county  of 

San  Francisco,  on  the day  of ,  18...,  the  afore- 
said assessment,  so  made  by  said  receiver  on  the  premium 
notes  of  the  members  of  said  company,  was  ratified  and  con- 
firmed, and  the  said  receiver  authorized  and  directed  by  said 
court  to  bring  suits  against  the  several  members  of  said  com- 
pany, who  have  refused  or  neglected  to  make  payment  of  the 
amount  so  assessed  by  plaintiff  to  be  paid  on  their  respective 
premium  notes. 

IX.  That  the   said   defendant's  note   aforesaid  was  assessed, 

for  the  purpose   aforesaid,  to  the   amount  of dollars, 

and  said  assessment  was  made  for  losses  or  damages  by  risks  on 
life  [or  otherwise]  and  expenses  accrued  to  said  company  only 
while  said  note  and  policy  of  insurance  therein  mentioned  were 
in  full  force  and  effect. 

X.  That  the  defendant  has  not  paid  the  said  assessment,  or  any 

part  thereof. 

[Demand  or  Judgmbnt.]* 

*  Such  a  omplaint  must  show  the  liabilities  of  the  company:  Thomas  ▼. 
"Whailou,  81  Barb.  172. 


SUBDIYISIOI^  SECOND. 

IN  ACTIONS  FOR  DEBT. 


CHAPTER  I. 

ACCOUNTS. 

§  605.    For  Money  Due  on  an  Account. 

Form  No.  127. 
[Title.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

I.  That  between  the day  of and  the day 

of ,  18...,  at ,  the  plaintiff  sold  and  delivered 

to  the  defendant,  at  his  request,  certain  goods,  wares,  and  mer- 
chandise. 

II.  That  the  same  were  reasonably  worth  the  sum  of 

dollars. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Demand  OF  JudombntJ 

.    §  606.    The  Same — Another  Form — Common  Count. 

Form  No.  128. 
The  plaintiff  complains  of  the  defendant,  and  alleges: 

I.  That  the  defendant  is  indebted  to  the  plaintiff  in  the  sum 
of dollars,  upon  an  account  of  goods  sold  and  deliv- 
ered by  the  plaintiff  to  the  defendant,  at  his  request,  at , 

between  the day  of  and  the day  of , 

18... 

II.  Tliat  the  same  became  due  and  payable  on  the day 

of ,  18..,  but  the  defendant  has  not  paid  the  same,  nor 

any  part  thereof  [if  there  haye  been  payments,  add  "  except  the 
sum  of  dollars  "j. 

[Demand  of  JtrooMKNT.] 

§  607.  Essential  Averments. — At  the  common  law,  an 
allegation  in  an  action  on  an  account,  that  the  defendant  is  in- 
debted to  plaintiff  in  the  sum,  etc.,  for  goods  sold  and  deliv- 
ertd  on,  etc. ,  and  that  there  was  then  due  to  the  plaintiff  from 

294 


§  608.  ACCOUNTS.  295 

the  defendant  said  sum,  inoplies  a  contract,  a  promise  to  pay, 
and  that  the  period  when  the  same  was  promised  to  be  paid  had 
expired,  and  constitutes  a  good  indebitatus  count  in  debt.^  An 
averment  of  request  is  not  necessary.*  The  allegation  of  value 
is  material. 3  But  an  implied  promise  to  pay  is  matter  of  law, 
and  should  not  be  pleaded.^  Wliere  a  deraan  1  would  be  neces- 
sary if  the  plaintiff  sued  for  damages  for  conversion,  he  must 
aver  a  demand  where  he  sues  upon  the  implied  contract,  waiv- 
ing the  tort.5  A  contract  to  pay  generally,  and  without  time 
or  terms  specified,  creates  a  debt  payable  presently,  and  no 
previous  call  or  demand  of  payment  is  required,  and  none  need 
be  averred.  Bringing  the  action  is  a  sufficient  demand. ^  On 
an  agreement  to  pay  on  request,  though  no  request  is  necessary 
if  the  promisor  be  the  principal  debtor,  it  is  necessary  if  he  is 
a  surety.''' 

§  608.  Items  of  Account. — Tn  California  and  many  of  the 
other  code  states,  the  code  contains  the  following  provision: 
"It  is  not  neces  ary  for  a  party  to  set  forth  in  a  pleading  the 
items  of  an  account  therein  alleged,  but  he  mus^,  deliver  to  the 
adverse  party,  within  five  days  after  demand  thereof,  in  writing, 
a  copy  of  the  account,  or  be  precluded  from  giving  evidence 
thereof.  •  The  court,  or  a  judge  thereof,  or  a  county  judge,  may 
order  a  further  account  where  the  one  delivered  is  too  general, 
or  is  defective  in  any  particular. "8  If  the  account  as  delivered 
is  not  satisfactory,  and  the  other  party  intends  to  object  to  the 
introduction  of  evidence  on  the  subject,  an  order  for  its  exclu- 
sion should  be  obtained  previous  to  the  trial.^  A  count  for  the 
value  of  the  use  and  occupation  of  plaintiff 's  land  does  not  pre- 
vent a  claim  upon  which  a  bill  of  particulars  can  be  required.^'' 

In  an  action  to  recover  many  items  of  demand  claimed  by 
one  and  the  same  right,  the  items  may  be,  for  the  sake  of  brev- 
ity and  convenience,  thrown  into  one  count.^    If  the  action  be 

1  1  Ch.  PI.  345;    2  H.  142;  Emory  Co.  v.  Prader,  82  Id.  638;  Goodrich 

V.  Fell,  2  T.  R.  28 ;    Allen   v.    Patter-  v.  James,     1     Wend.     2H9;     N.    Y., 

son,  7  N.  Y.  479;  see  also  Hu^'hes  v.  1876,    sec.   531;     Wi-.  R.   S.,    c.   125, 

Woo.sley,   15   Mo.  492,  as  to  form  of  sec.  20;  Minn.   Code  Proc.  sec.   92; 

complxint  on  an  account.  Col.  Code  Civil    Proc,  sec.  '14;    Nev. 

*  Acom  V.  American  Mineral  Co.,  Comp.  L.,  sec.  1119;  N  C.  C<»de  Civil 
11  H..W.  Pr.  24.  Proc,  sec.  118;  S.  C-  CodH  I'roc,  sec. 

«Gre<roryv.Wri£jht,ll  Abb.Pr.417.    181;    Floridn  Code  Civil  Proc,    set. 

*  Farron  v.  Shprwood,  17  N.  Y.  227.     103.     In  other  states   the  copy  of  the 
'  Spoor  v.  Newell,  3  Hill,  307.  account  must  be  eilhnr  attached  to 

*  Lake   Ontario    etc   R,   R,   Co.  v.     or  incorporated  in  the  pleadinjj. 
Mason,  16  N.  Y.  451.  »  Kellogg  v.  Paine,  8  How.  Pr.  329. 

">  Nelson  v.  Bogtwick.  5  Hill,  37.  *"  Moore  v.  Bates.  46  Cal.  30. 

•Code  C.  P..  sec.  454;  Conner  v.  ^^  Longworihy  v.  Kiiapp,  4  Abb.  Pr. 
Eutchiason,    17  CaL  281;    P.   Tool    116. 


W8  FORMS  OF  COMPLAINTS.  §  609. 

in  fact  for  an  accounting,  it  may  be  treated   as  one   cause   of 
action  of  an  equitable  nature,  and  stated  accordingly.^ 

§  609.  Matual,  Open,  and  Carrent  Account— Sst-ofiF. — 
A  **  mutual,  open,  and  current  account,  where  tliere  have  been 
reciprocal  demands,"  within  the  meaning  of  the  statute  of  lim- 
itations, is  one  consisting  of  demands  upon  which  each  party 
respectively  might  maintain  an  action.^  If  all  the  items  on 
one  side  of  the  account  were  intended  by  the  parties  as  payment 
or  credits  on  account,  it  is  not  a  mutual,  open,  and  current  account 
where  tliere  are  reciprocal  demands. ^  So  where  one  party  is 
selling  to  the  other  party  goods  from  time  to  time,  and  charging 
the  same,  and  the  other  gives  him  the  money,  which  he  ere  lits  on 
the  account  as  payment,  the  credit  does  not  make  the  account 
mutual  within  the  statute  of  limitations,  and  each  item  is  barred 
in  two  years  after  its  delivery.'*  But  where  the  defendants  de- 
livered to  the  plaintiffs  an  article  of  personal  property,  for 
which  the  latter  gave  the  former  credit  at  a  specified  valuavion,  a 
mutual  account  was  created.^  In  Nevada,  it  was  decided  that 
such  a  credit  would  not  constitute  a  mutual  account  consisiing 
of  reciprocal  demands,  but  it  would  create  a  mutual  account  if 
delivered  without  any  understanding  that  it  should  be  applied 
as  payment.^  Mutual  accounts  are  made  up  of  m  itttn-s  of  set- 
off, where  there  is  an  existing  debt  on  the  one  side  and  a  credit 
on  the  other;  or  where  there  is  an  understanding,  express  or 
impliel,  that  mutual  debts  shall  be  satisfied  or  set  off  pro  tinto. 
A  payment  made  on  an  account  and  not  intended  as  a  set-off 
jyro  tanto,  does  not  make  a  mutual  account.  Striking  a  balance 
converts  the  set-off  into  a  payment.  And  until  such  balance  is 
struck  a  mutual  account  exists.''' 

§  610.  Joint  Ad7eatur9, — A  bill  for  an  account  is  the 
proper  remedy  for  the  settlement  of  the  proceeds  of  a  joint  ad- 
venture, where,  in  consideration  of  an  outfit  and  advances  made 
by  plaintiff,  the  defendant  agreed  to  account  for  and  pay  over  a 
proporti(m  of  the  proceeds  of  his  labor  and  speculation  of  every 
kind  for  a  certain  period  of  time,  although  the  parties  may  not 
have  been  technically  partners.  Nor  is  it  a  misjoinder  of  causes 
of  action  to  demand  in  the  same  action,  that  defendant  account 
for  and  refund  a  proportion  of  the  outfit  and  advances  made  by 
plaintiff  as  agreed  in  same  contract.® 

1  Alnms  V.  HoUey,  12  How.Pr.  826.  *  Norton  v.  Laroo,  30  Cal.  132. 

*  VV;iiTeii  V.  Sweeney,  4  Nev.  101.  •  Warren  v.  Sweeinn-,  4  Nov.  101. 
«  I.I.  '  Norton  V.  La.T,o,  30  C:\].  126. 

*  Adams  V.  Palterson,  35  Cal.  122.  •  Garr  v.  Redin&n,  6  CaL  674. 


§  615.  ACCOUNTS.  297 

§  611.  Partners. — An  action  of  account  at  law  may  be 
brought  by  one  partner  against  another,^  in  any  business. ^ 

§  612.  Running  Accounts. — In  suits  on  running  account, 
the  whole  should  be  included  in  a  single  action.*  Various  items 
of  an  account,  though  accrued  at  different  times,  maybe  united.* 

§  613.  When  Action  Lies. — The  action  of  account  lies  be- 
tween merchants  between  whom  there  is  a  privity.^  Against 
an  attorney  for  money  received  from  his  client.*  By  a  cestui 
que  trust,  against  trustee  appointed  by  will  for  an  account.'' 
By  receiver  against  his  deputy. ^  So,  by  a  sheriff  against  his 
deputy.*  Against  a  receiver  appointed  to  receive  rents  and 
debts  of  another.^" 

SafiBciency  of  Common  Accounts. — The  courts  of 
almost  all  the  states,  with  the  exception  of  one  or  two,  uphold 
the  sufficiency  of  the  common  counts,  in  actions  under  the 
code,  in  all  cases  where  such  forms  were  sufficient  at  common 
law.^  In  Minnesota  and  Oregon  the  use  of  the  common  count 
in  such  connection  is  not  permitted. 

§  615.    By  an  Assignee  on  an  Account. 

Form  No.  129. 

[TiTLK.] 

The  plaintiff  complains  and  alleges : 

I.  That  on  the day  of  ,  18...,  at  the  city  of 

»Co.  Lit  171;  1  Montg.  on  P.  45;  »  Id. 

Duiuan  V.   Lvon,   3   Johns.  Ch.  351  ;  »<>  1  Com.  Dig.  190;  1  Roll.  116;   6 

Atwater  v.  Fowler   1  E.lw.  Ch.  417;  Mod.  92. 

Ogden  V.  Astor,  4  Sandl.  313.  "  Ab«die   v.   Carrillo,  32  Cal.  172; 

*  See  Laniair  v.  Lanfair,  18  Pick.  Wilkiiis  v.  Stidger,  22  Id.  233;  Ma- 
299,  overruling  dicta  in  McMurray  v.  gee  v.  Kast,  49  Id.  141 ;  Merritt  v. 
Eawson  3  Hill,  69;  see,  also,  Kelly  Glidden,  39  Id.  559;  Pavisich  v.  Bean, 
V.  Kplly.  3  Barb.  419.  48  Id.  3«4 ;  Curran  v.  Curran,  40  Ind. 

8  Guernsey  v.  Carver,  8  Wend.  492;  473;  .Johnson   v.  Kilgore,  39  Id.  147; 

Bonst-y  V,  Wordsworth.  3ti  Eng.  Law  ('cimmiasioners    v.    VerbHrsj,    63    Id. 

&  Eq.  2-<8;  18  C.  B.  325;    Wood  v.  107;    Bou-slo^  v.  Garrett,  39  Id.  338; 

Perry,  3  Exch.  442.  Noble    v.    Burton,    Id.    20*3 ;    Gwalt- 

*  I)  ws  v  Hotchkiss,  10  N.  Y.  Leg,  nev  v.  Cannon,  31  Id.  227 ;  Raymond 
Ob8-281;Adam8V.Holley,  12H..W.  I'r.  v.>lanford,  6  N.  Y.  S.  C  312;  Fells 
82ti.  As  to  when  separate  accounts  v.  Vfsivali,  2  Keyes,  152;  Ball  t. 
between  the  same  parlies  are  si'pitrate  Fiitlon  Co.,  31  Ark.  379;  Jones  v. 
causes  of  action,  and  therefore  must  Mial.  82  N.  C. 252;  Emsliev.  Le:iven- 
be  separately  stated,  see  Phillips  v.  worth.  20  Kans.  562 ;  Alien  v.  Patter- 
Berick,  16  Johns.  136:  Stevens  v.  son,  7  N.  Y.  476;  Aleajjher  v.  Mor- 
Lockwood,  13  Wend.  644;  S'.aples  v.  gan,  3  Kans.  372;  Claik  v.  Fensky, 
Goodrith,  21  Barb.  317.  and  Long-  Hid.  3K9;  Carroll  v.  Paul's  Ex'rs,  16 
worthv  V.  Kiiapp,  4  Abb.  Pr.  1 15.  Mo.  226;   Farron  v.  Sherwood,   17  N. 

»  2  (ireenl.  Ev.  35;  1  Com.  Dig.,  Ac.  Y.  227 ;  H.slev  v.  Bb.ck,   2«  I.l.  438; 

A.  B.  Hurst  V.  Liiclifield,  39  M.  377;  Queen 

•  Breed  in  v.  Kingland  4  Watts,  v.  Gilbert.  21  Wis.  395;  Gran  nig  v. 
420;  3  Chit.  8«^.  Hooker,  29  Id.  65. 

'  B'edin  v.  Deven,  2  Watts,  95.  i'  Koprster  v.  Kirkpatrifk,  2   Minn. 

•  1  KoU.  118-120;  1  Cum.  Dig.  191.      210;  Boweu  v.  Eiameiboii,  3  Ur.  462. 


298  FORMS  OF  COMPLAINTS.  §   616. 

,  the  defendant  was  indebted  to  one  E.  F.  in  the  sura 

of dollars,  on  an  account  for  money  lent  by  said  E.  F. 

to  said  defendant,  and  for  money  paid,  laid  out,  and  expended 
by  said  E.  F.  to  and  for  use  of  said  defendant,  and  at  his 
request. 

II.  That  thereafter  said  E.  F.,  assigned  said  indebtedness  to 
this  plaintiff,  of  which  the  defendant  had  due  notice. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof.^ 

[Demand  of  Judgment.] 

§  616.     On  an  Account  Stated. 

Form  No.  ISO. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of  ,  18-...,  at ,  an 

account   was   stated   between  the  plaintiff    and  the   defendant, 

and   upon  such  statement   a  balance  of   dollars   was 

found  due  to  the  plaintiff  from  the  defendant. 

II.  That  the  defendant  agreed  to  pay  to  the  plaintiff  the  said 
balance  of dollars. 

III.  That  he  has  not  paid  the  same. 

[Demand  of  Judgment.] 

§  617.  Essential  Averments. — Where  the  parties  to  an  ac- 
count have  examined  it,  and  agreed  upcn  a  certain  sum  of  money 
as  the  balance  justly  due  thereon  from  one  party  to  the  other, 
then  such  account  has  become  an  account  stated,  and  an  action 
thereon  is  not  founded  upon  the  original  items,  but  upon  the 
balance  ascertained  by  the  accounting. ^  The  material  allega- 
tions in  such  action  are:  1,  That  plaintiff  and  defendant  came 
to  an  accounting  together;  2.  On  such  accounting  defendant 
was  found  indebted  to  the  plaintiff  in  a  specified  sum ;  3. 
Which  defendant  promised  to  pay ;  4.  And  has  not  paid.  What 
constitutes  an  account  stated  is  a  question  of  law.^  An  aver- 
ment that  one  party  made  a  statement  of  an  account  and  de- 
livered it  to  the  other,  who  made  no  objection  to  it,  is  not  an 
averment  that  an  account  was  stated  between  them.  At  most, 
these  are  matters  of  evidence,  tending  to  show,  but  not  conclu- 
sively, an  account  stated.^  Where,  after  the  death  of  one  part- 
ner, an  account  is  stated  between  defendant  and  the  copartner- 
ship, admitting    a  balance    due  by   him   for  goods  sold    in  the 

1  As  to  actions  by  an  assignee,  see  '  Lockwood  v.  Thome,  11  N,  T. 
ant'f.  170;  Graham  v,  Camman,   13   How. 

2  liptiitps  V.  Bifknpll,  2  West  C'>ast      Pr.  -Stil. 

Rep.  359;  Orr  v.  Hopkius,  1  Id.  1J7.         *  Emery  v.  Pease,  20  N.  T.  62. 


§  618.  ACCOUNTS.  299 

life-time  of  the  deceased,  the  surviving  partner  may  recover 
without  averring  the  death  of  the  other  partner,  and  the  surviv- 
orship.^ 

A  complaint  stating  that  whereas  said  defendant  was  justly 
indebted  to  plaintiffs  in  the  sum  of  three  thousand  dollars,  for 
money  paid,  laid  out,  and  expended  for  the  use  and  benefit  of 
said  defendant,  and  at  his  special  instance  and  request,  to  wit, 
at,  etc.,  and  on  the  first  day  of  April,  1857,  and  in  the  sum  of 
three  thousand  dollars,  for  money  found  to  be  due  from  the  de- 
fendant to  plaintiffs  on  an  account  then  stated  between  them ; 
and  the  said  defendant  being  so  indebted  to  the  plaintiffs,  after- 
wards, to  wit,  on  the  day  and  year  aforesaid,  at  the  place  afore- 
said, undertook,  and  faithfully  promised  the  plaintiffs,  to  pay 
the  same,  etc.,  and  that  said  sum  is  due  and  unpaid,  sufficiently 
states  a  cause  or  action. ^  A  complaint,  although  it  refers  to  an 
account,  should  indicate  the  nature  and  character  of  the  claim, 
and  the  period  within  which  it  arose. ^ 

§  618.  Account,  how  Stated,  and  Effect  of. — The  mere 
rendering  of  an  account  does  not  make  a  stated  one.  Yet  if  it 
is  received,  its  correctness  admitted,  balance  claimed,  or  offer 
made  to  pay,  it  becomes  a  stated  account.'*  An  account  in  writ- 
ing, showing  a  balance,  or  that  there  is  none,  does  not  require  a 
signature  to  make  it  a  stated  account.^  And  it  is  not  affected 
by  its  balance  being  introduced  into  a  subsequent  account.  The 
complaint  must  show  a  demand  in  favor  of  the  plaintiff  acceded 
to  by  the  defendant.^  Where  a  party  receives  an  account,  and 
keeps  it  for  a  reasonable  time  without  objecting  to  it,  he  will  be 
considered  as  acquiescing  in  it,  and  it  will  have  the  force  of  an 
account  stated,'  But  where  a  merchant  sends  an  account  current 
to  another  residing  in  a  different  country,  and  he  keeps  it 
throu-h  two  years  without  making  an  objection,  it  becomes  an 
account  stated. ^  Long  acquiescence  makes  an  account  an  ac- 
count stated.^  The  statement  of  an  account  is  n  it  conclusive,  but 
throws  upon  the  party  claiming  error  the  burden  of  proving 
it.^"  But  if  there  have  been  mutual  compromises,  it  will  oi)erate 
as  an  estoppel  in  pais.^^  Where  accounts  bear  upon  their  face 
"audited  and   approved,"  and  "  certitied  to   be  correct,"  they 

*  Homes  v.  DeCamp,  1  Johns.  34.  »  1  Storv  Eq.  Jur.,  spc.  526 ;  Schefc- 
»  De  Wilt  V.  Porter,  13  Cal.  171.  tier  v.  Smith,  34  N.  Y.  (2  .).  &  Sp  } 
»  Farcy  v.  Lhp,  10  AbK  Pr.  148.  17;  Stentoii  v.  Jerome,  54  N.  Y.  480. 

*  Tolniid  V.  Sprague,  12  Pet  300.  *"  Massachusetts  Life  ins.  Co,  Y. 
6  Bilker  v.  lii.idle,  Rnldw.  394.  CaipHnter,  49  N.  Y.  6«8. 

«  Terry  v.  Sickles,  13  Cal  427.  "  Kock  v.  Bouilz,  4  Daly  (N.  Y.), 

»  Tow^'^lev  V.  Deiiison,  45  Barb. 400.      117. 


Freeland  v.  Heron,  7  Cranch,  147. 


909  FORMS  OF  COMPLAINTS.  §  619. 

become  instruments  of  writing  within  the  meaning  of  the  statute, 
and  are  not  barred  by  that  portion  of  the  statute  of  limitations 
applying  to  accounts.^  An  account  between  merchant  and  mer- 
chant, closed  by  cessation  of  mutual  dealings,  does  not  therefore 
become  an  account  stated. ^  An  account  stated  alters  the  nature 
of  the  original  indebtedness,  and  has  the  effect  of  a  new  promise.' 
The  rule  in  matters  of  account  is  applicable  to  a  private  corporate 
body,  engaged  in  trade,  and  conducting  its  affairs  by  officers  and 
agents.'* 

§  619.  The  Same — "Errors  Excepted." — An  account  in 
writing,  examined  and  signed,  will  be  deemed  a  stated  account, 
notwithstanding  it  contains  the  phrase  "errors  excepted."* 
Accounts  stated  may  be  opened,  an<i  the  whole  account  taken  de 
novo,  for  gross  mistake  in  some  cases ;  but  only  when  the 
error  affects  all  the  items  of  the  transaction.  And  when  a 
party  goes  into  particulars  he  is  confined  to  those  items  im- 
properly charged,  and  the  remainder  of  the  account  must 
standi 

§  620.  Opening  an  Account  Stated. — "When  an  account 
is  settled  by  the  parties  themselves,  their  adjustment  is  final 
and  conclusive, 8  even  as  to  the  guarantor.^  It  is  not  at  all  im- 
portant that  the  account  be  made  out  by  one  party  against  the 
other.  When  a  consignor  rendered  an  account  to  the  consignee, 
it  was  a  stated  account  from  the  time  the  consignor  demanded 
payment  of  the  balance.^'*  So  where  the  agent  presented  the 
account. '^  The  practice  of  opening  accounts  stated  is  not  en- 
couraged, and  should  only  be  done  on  clear  proof  of  error  or 
mistake. ^2  gut  fraud  is  a  sufficient  ground  to  open  an  account 
stated. 13  The  effect  of  surcharging  and  falsifying  an  account  is 
to  leave  it  an  account  stated,  except  so  far  as  it  can  be  impugned. ^^ 
An  account  can  not  be  reopened  by  one  of  the  parties  without 
proof  of  the  items,  and  that  some  one  or  more  of  them  ought 

1  Sannickson  v.  Brown,  5  Cal.  57.  ^  Hager  v.  Thomson,    1  Black.  80. 

s  Mandeville  V.  Wilson,  5  Orauch,  •  Bullock  v.  Boyd.  2Edw.  th.  2'.t3; 

15,  W  Toland  V.  Sprajriie,   12  IVt.   800. 

8  Carey  v.  P.  &  0.  Petroleum  Co.,  "  Willis  v.  Feriiejiaii,  2   Alk.  2')1 ; 

88  Cal.  694;  Holmes  v.    De  Camp,  1  Denton  v.  Shelliird,  2  Ves.  sen.  2:^9; 

Johns.  34;  Allen  v.  Stevens,  1  M.  Y.  Murray  v.  Toland,  8  Johns.  Ch.  5t)9; 

Leg.  01)8.  859.  ^^  Wilde  v.  Jenkins,  4  Paiire  Ch. 

*  Bradley  v.  Richardson,  2  Blatehf.  481 ;  Lock  wood  v.  Thorno.  11N.Y.170. 
843.  1'  2  Dann's  Ch.  Pr.  764. 

*  Brannpr  v.  Chevalier,  9  Cal.  863;  •'  Pit  v  Cliolinondelev,  2  Ve8.8en. 
Troup  V.  Hnight,  Hopk.  272.  5'"5;  Perkins  v.  Hart.  11  Wheat,  2H7; 

«  BraiigHF  v.  Chevalier,  9  Cal.  353;  Siory'sEq,  PI.,  sec.  801 ;  1  .Story's  Eq. 

Hagar  V.  Thomson,  1  Black.  80.  Jur.,  sec.  5J8 ;  Bruen  v.  Hone,  2  Barb. 

'  Brangerv.  Chevalier,  9  Cal.  853;  SBii;    BuHork  v.   Boyd,  2   Edw.  Ch. 

Perkins  v.  Hart,  11  Wheat  237.  293  ;  Phillips  v.  Belde'u,  2  Id.  1. 


§  623.  ACCOUNTS.  301 

not  to  have  been  allowed.^  If  the  complaint  is  verified,  and 
the  answer  does  not  charge  fraud  or  mistake,  evidence  of  over- 
charge is  not  admissible.* 

This  rule  is  founded  upon  the  idea  that  when  an  account  be- 
tween parties  is  stated,  with  debit  and  credit  sides,  and  the 
matter  in  controversy  is  stated  therein,  the  presumption  of  law 
is  that  the  account  is  correct,  unless  it  is  shown  that  fraud, 
omission,  or  mistake  exists. ^  An  account  against  the  state, 
certified  by  the  auditor,  is  conclusive  on  him  only  as  to  the  cor- 
rectness of  the  statements  herein  contained.* 

§  621.  Erasure. — An  erasure  in  a  settled  account,  not  shown 
to  have  been  made  before  its  settlement,  is  sufficient  to  avoid  it.® 
The  presumption  is  that  the  alteration  was  made  after  execution.* 

§  622.  For  a  General  Balance  of  Account. 

Form  No.  131. 
[Title.] 

The  plaintiff  complains,  and  alleges : 

I.  That  the  defendant  is  indebted  to  the  plaintiff  in  the  sum 

of dollars,  for  the  balance  of  an  account  for  groceries 

sold  and  delivered  by  the  plaintiff  to  defendant,  and  for  services 
performed  by  the  plaintiff  for  the  defendant  as  an  accountant, 
and  for  commissions  of  plaintiff  on  the  sale  for  defendant  of 
various  articles  of  farm  produce,  and  for  moneys  paid  by 
plaintiff  for  defendant's   use;   the   whole   furnished,  done,  and 

performed  at  the   request  of  the  defendant,  between  the 

day  of ,  18...,  and  the  day  of ,  18...; 

that  the  whole  amount  and  aggregate  value  of  which  items  is 

dollars,  no  part  of   which   has   been   paid,  except  the 

sum  of dollars,  the  balance   of   account  fii-st   aforesaid 

still  being  unpaid. 

II.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Demand  of  Judgment.] 

§  623.  Upon  an  Account  for  Services. 

Form  No.  132. 
[Title.] 

The  plaintiff  complains,  and  alleges : 

I.  That    between   the day  of ,  18...,  and  the 

day    of ,  18...,  at  the   city  of ,.  the 

plaintiff  performed  work,  labor,  and  services  [state  the  servicesj 
for  the  defendant  at  his  request. 

»  Siitphen  V.  Cushman,  35  111.  186.  »  Prevost  v.  Gratz,  Pet.  3fi4. 

•  Phillips  V.  Belden,  2  Edw.  I.  "Id.;    but     eompare      IMalannr     y* 

•  Carroll  v.  Paul,  16  Mo.  226.  United  States,  1  Wall.  U.  S.  28i. 

•  State  T.  Hlnkson,  7  Mo.  863. 


802  FORMS  OF  COMPLAINTS.  §  624. 

n.  That  the  same  were  reasonably  worth  the  sum  of 

dolhirs. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

.thereof. 

[Demand  of  JtrooMBNT.] 

§  624.    The  Same  —  AaotherForm — Common  Count. 

Form  No.  ISS. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  indebted   to  the  plaintiff  in  the  sum 

of dollars  on  an  account  for  the  work,  labor,  and  services 

in  [state  the  service]  performed  at  the  r-equest  of  the  defendant 

at ,  between  the day  of ,  18..., 

and day  of ,  18... 

II.  That  he  has  not  paid  the  same,  nor  any  part  thereof.^ 

[Demand  of  Judgment.] 

§  625.  Services.  —  A  (complaint)  on  an  account  for  services 
iiendered  a  third  person  charging  an  original  liability  is  suffi- 
cient.' 

§  626.  Time. — In  order  to  be  suflSciently  definite  and  cer- 
tain, the  complaint  should  show  the  nature  and  character  of  the 
claim,  and  the  period  within  which  it  arose."* 

§  627.  The  Same — By  an  Architect. 

Form  No.  1S4. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  between  the day  of 18...,  and  the 

day  of ,  18...,  at  ,  the  plaintiff 

performed  worls,  labor,  and  services  for  the  defendant,  and  at 
his  request,  as  architect,  in  forming  and  drawing  plans,  and 
making  estimates  for,  and  superintending  the  erection  of  a  row 

of  buililings  to  be  known  as  Cottage  Row,  in street,  in  the 

city  and  county  of  San  Francisco. 

II.  That  the  said  services  were  reasonably  worth  the  sum  of 
dollars. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 
§  628.  The  Same  —  Another  Form  —  Common  Connt. 

Form  No.  1S5. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  indebted  to  the  plaintiff  in  the  sum 

1  This  form  is  Bustnined  by  Moffet         «  Wing  v.  Campbell,  16  Mo.  275. 
^▼.  Suukeit,  18  N.  Y.  522.  •  Farcy  v.  Lee,  10  Abb.  Pr.  148. 


§  631.  ACCOUNTS.  303 

of dollars,  on   account  for   work,  labor,  and   services 

as  architect,  in  forming  and  drawing  plans,  and  making  esti- 
mates for,  and  superintending  the  erection  of  a  row  of  buildings 

to  be  known  as  Cottage  Row,  in  street,  in   the  city  and 

county  of  San  Francisco,  performed  at  the  request  of  the  de- 
fendant between  the  day  of ,  18...,  and  the 

day  of  ,  18.... 

II.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Demand  of  Judomknt.] 

§  629.    The  Same,  by  a  Broker  for  Commissions. 

Form  No.  136. 

fTlTLB.] 

The  plaintiff  complains,  and  alleges : 

I.  That  between  the day  of ,  18...,  and 

the day  of  ,  18...,  the  plaintiff  performed 

services  for  the  defendant  at  his  request,  as  broker,  at  the  city 
and  county  of  San  Francisco,  in  the  purchase  [and  sale]  of 
[government  bonds,  state  stock,  negotiable  securities,  real  es- 
tate, personal  property,  or  otherwise]. 

II.  That  such  services   were    reasonably  worth  the   sum  of 
dollars. 

III.  That  the  defendant  has  not  paid  the  same  nor  any  part 
thereof. 

[DkMAKD  of  JlTDGMBNT.] 

§  630.    The  Same — ^Another  Form — Common  Count. 

Form  No.  157, 
[TrrLK.] 

The  plaintiff  complains,  and  alleges : 

I.  That  the  defendant  is  indebted  to  the  plaintiff  in  the  sum 

of dollars,  on  an  account  for  services  as  broker  in  the 

purchase  [and  sale]  of  [government  bonds,  state  stock,  nego- 
tiable securities,  real  estate,  personal  property,  or  otiierwise], 
performed  »t  the  request  of  the  defendant,   at  the  city  and 

county  of  San  Francisco,  between  the day  of ^ 

18...,  and  the  day  of ,  18.... 

II.  That  the  defendant  has  not  paid  the  same  nor  any  part 

thereof. 

[Demand  of  Judomknt.] 

§  631.    By  Carrier,  Against  Consignor,  for  Freight. 

Form  No.  138. 

[TiTLT!:.] 

The  plaintiff  complains,  and  alleges : 

I.  That  between  the day  of  .....V7.T...,  lo  ..,  and  the 

«. day  of  ,  18....,  the  plaintiff  performed  work. 


804"  FOllMS  OF  COMPLAINTS.  §   G32. 

labor,  and  services  for  the  defendant,  at  his  request,  in  carr\  ing 

in  their  vessel,  the ,  sundry  goods  and  merchandise 

from to   

II.  That   such    services  were    reasonably  worth   the   sura   of 
dollars. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Demand  of  Judomknt.] 

§  632.    The  Same — Another  Form — Common  Count. 

Form  No.  139. 

[TlTLB.] 

Tlie  plaintiff  complains,  and  aUpges: 

I.  That    the    defendant    is   indebted  to   the   plaintiff  to   the 

amount  of dollars,  on  an  account  for  work,  labor,  and 

services,  in  carrying  in  their  vessel,  the ,  sundry  goods 

and  merchandise,  from  to ,  at  the  request  of 

the  defendant,  between  the  day  of ,  18..., 

and  the day  of  ,  18... 

II.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Demand  of  Jitdgment.] 

§  633.    The  Same — Against  Consignee. 

Form  No.  140. 
[Title.] 

The  plaintiff  compUins,  and  alleges: 

I.  That  between  the day  of  ,  18...,  and  the 

day  of  ,  18...,  the   plaintiff  performed  work,   labor,    and 

services  in  carrying  in  their  vessel,  the ,  sundry  goods 

and  merchandise,  from  to    ,  which   were 

consigned  to  the  defendant  and  delivered  by  plaintiff  at , 

to  the  defendant,  and  by  him  accepted. 

II.  That  such  services   wei'e  reasonably  worth   the    sum  of 
dollars. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Dkmand  of  Judgment.] 

§  634.    The  Same — Another  Form — Common  Count. 

Form  No.  I4I. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  indebted  to    the  plaintiff  to    the 

amount  of dollars,  on  account  for  work,  labor,  and 

services,  in  carrying  in  their  vessel,  the ,  sundry  goods 

and  merchandise,  from to  ,  which  were  con- 

aigned  to  the  defendant  and  delivered  by  plaintiff  at  


§  639.  ACCOUNTS.  305 

to  the  defendant,  and  by  him  accepted,  between  the day  of 

,  18...,  and  the day  of ,  18 

II.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Dkmand  of  Judgment.] 

§  635.     Interest, — Freight  does  not  bear  interest  till  after 

demand.'^ 

§  636.    By  Editor  for  Services. 

Form  No.  142, 
[Title.] 
Tlie  plriintiff  complains,  and  alleges: 

I,  That  between  the day  of ,  18 ,  and  the  ..... 

day  of ,  18 ,  at  the  city  and  county  of  S  n  Francisco, 

the  plaintiff  performed  services  for  the  defendant,  at  his  request, 
as   an  editor,   in  conducting  the   newspaper   of    the   defendant 

known  as  "The ,"   and  in  writing  and  preparing  articles 

and  paragraphs  for  the  same. 

II,  That  such  services  were  reasonably  worth  the  sum  of 
dollars. 

III,  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Demand  of  Judgment.] 

§  637.    The  Same — Another  Form — Common  Count. 

Form  No.  143. 
[Title,] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  indebted  to  the  plaintiff  in  the  sum 

of dollars,  on   an   account  for   services  as  an  editor  in 

conducting  the  newspaper   of  the   defendant  known   as    "The 

,"  and  in  writing  and  preparing  articles  and  paragraphs 

for  the  same,    performed  at  the  request  of  the  defendant,  at  the 

city  and   county  of   San   Francisco,   between   the day  of 

,  18 ,  and  the. day  of ,  18 

II.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Demand  of  Judgment.] 

§  638.  Contributor's  Services.— The  funiishing  of  articles 
for  publication,  at  the  request  of  the  publisher,  is  not  of  itself 
a  service  for  which  a  promise  to  pay  will  be  implied-  See  au- 
thorities under  the  next  form. 

§  639,  By  Author  for  Editing  and  Compiling  Book. 

Form  No.  144. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

*  Schureman  v.  Withers,  Anth,  N.  P.  280!{ 
EsTKE,  Vol.  1—20. 


306  FOKMS  OP  COMPLAINTS.  §  640. 

I.  That  between  the day  of ,  18...,  and  the 

day  of ,  18  ..,  at  the  city  and  county  of  San  Francisco, 

the  plaintiff  performed  worlc,  labor,  and  services  for  the  defend- 
ant, at  his  request,  in  compiling  and  writing  a   certain   book, 

•entitled  "The ,"  and  in   preparing  the  same  for  the 

ipress,  and  revising  and  correcting  the  proofs  for  the  same. 

II.  That  such  services  were  reasonably  worth  the  sum  of 
^ dollars. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

(thereof. 

[Demand  of  Judgmbnt.] 

§  640.  The  Same — Another  Form — Common  Count. 

Form  No.  1^ 

[TiTLTC.] 

The  plaintiff  complains,  and  alleges : 

I.  That  the   defendant  is  indebted  to  the  plaintiff  in  the  sum 

•of dollars,  on  an  account  for  work,  labor,  and  services, 

in  compiling  and  editing  a  certain  book,  entitled  "The  ," 

and  in  preparing  the  same  for  the  press,  and  revising  and  cor- 
recting the  proofs  of  the  same,  performed  at  the  request  of  the 
defendant,  at  the  city  and   county   of  San   Francisco,  between 

<the  day  of ,  18...,   and  the  day  of , 

18... 

II.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Demand  of  Judqmbnt.] 

§  641.  Author's  Services. — A  stronger  case  is  required  to 
raise  an  implied  promise  on  the  part  of  the  publisher  to  pay 
for  the  services  of  the  author  than  in  the  case  of  other  services.^ 
We  can  not,  however,  see  any  reason  why  a  stronger  case  is 
required  to  raise  an  implied  promise  to  pay  on  the  part  of  pub- 
lishers, for  services  rendered  them,  than  for  any  other  class  of 
persons. 

I  642.  For  Services  and  Materials  Furnished. 

Form  No.  146. 
[TiTLB  ] 

The  plaintiff  complains,  and  alleges : 

I.  That  between  the day  of  ,  18...,  and  the 

day  of  ,  18  ...,  at  the  city  and  county  of  San 

1  See,  R8  to  the  rights  of  the  author  This  case  was  never  deoirlod.  Beck- 
without  copyright,  in  I)oiiald«oii  v,  ford  v.  Hood,  7  T.  H.  620;  and  see 
iBecket,  17  Pari.  Hist,  990;  judgment  627;  Chappell  v.  Purdav,  14  Mee.  & 
reported  in  4  Burr.  2408;  Thurlow  W.  303;  Jetfrevs  v.  Boosey,  30  Eng. 
arguendo  in  Tonson  v.  Collins,  I  VV.  L  «fe  E.  1;  Wheaton  v,  Pit<T8.  8 
iBliick.  306;  Yates  arguendo  Id.  333.  Pet.  591;  S.  C,  11  Curtis'  Decis.  223. 


§  64b.  ACCOUNTS.  307 

Francisco,  the  plaintiff  performed  work,  labor,  and  services  for 
the  (left'inlant,  at  his  request,  in  [insert  naure  of  work],  and 
furnished  materials  to  the  defendant  in  and  about  the  said  work, 
on  the  li  e  request. 

II.  That  such  services  and  materials  were  reasonably  worth 
the  sum  of dollars. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Demand  of  Judgment.] 

§  643.    The  Same— Another  Form — Common  Count. 

Form  No.  147. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  indebted  to  the  plaintiff  in  the  sum 
of dollars,  on  an  account  for  work,  labor,  and  serv- 
ices of  the  plaintiff,  performed  at  the  request  of  the  defendant, 
in  [insert  nature  of  work],  and  for  materials  furnished  by  the 
plaintiff  in  and  about  the  said  work,  on  the  like  request,  between 

the day  of ,  18...,  and  the day  of , 

18...,  at  the  city  and  county  of  San  Francisco. 

II.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  644.    For  Taition  Bills. 

Form  No.  148. 
[Title] 

The  plaintiff  complains,  and  alleges : 

I.  That  between  the  day  of  .....t..^7T7,  18...,  and   the 

day   of  ,  18...,   at  the  city  and  county  of  San 

Francisco,  the  plaintiff,  at  the  request  of  the  defendant,  per- 
formed work,  labor,  and  services  in  instructing  his  children  in 
various  branches  of  learning,  and  furnished  them  with  books, 
papers,  and  other  things  necessary  in  and  about  said  work,  at 
the  like  request,  and  provided  them  with  board,  lodging,  and 
other  necessaries. 

II.  That  such  services  and  materials  furnished  were  reason- 
ably worth  the  sum  of dollars. 

II  (.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[DcMAvs  or  Judgment.] 

§  645.    The  Same— Another  Form— Common  Connt. 

Form  No.  149, 
[Title.] 

The  plaintiff  complains,  and  alleges : 

I.  That  the  defendant  is  indebted  to  the  plaintiff  in  the  sum 

of dollars,  on  an  account  for  the  wo/k,  labor,  aud 


308  FOKMS  OF  COMPLAINTS.  §    fi46. 

servines  performed  at  tlie  request  of  tin*  "U'rendant,  in  instciict- 
ing  his  children  in  various  useful  braneli  's  of  learning,  and  for 
books,  papers,  and  other  necessary  thinu^s  furnished  by  tliis 
plaintiff  in  and  about  said  work,  at  the  like  request,  and  for 
the  board,  lodging  and  other  necessaries  for  said  children,  pro- 
vided by  the  plaintiff  during  said  time,  at  the  like  request,  be- 
tween the  day  of  ,  18...,  and  the day  of 

,  18...,  in  the  sum  of  dollars. 

II.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof  [except,  etc.] 

[Demand  of  Judgment.] 


CHAPTER  II. 

ON  AWARDS. 

§  646.    On  An  Award  of  Arbitrators — Common  Form. 

Form  No.  150, 
[Title.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the day  of  ,   18...,  at  , 

disputes  and  differences  existed  between  the  plaintiff  and  de- 
fendant concerning  [a  demand  of  the  plaintiff  for  labor  and 
service  rendered  by  him  for  the  defendant  at  his  request],  and 
thereupon,  on  the  day  last  aforesaid,  the  plaintiff  and  defendant 
agreed,  in  writing,  to  submit  the  same  to  the  award  of  A.  B.  as 
an  arbitrator  between  them,  a  copy  of  which  said  agreement 
and  submission  is  hereunto  annexed,  marked  "Exhibit  A,"  and 
made  part  hereof. 

II.  That  thereafter  the  said  A.  B.  duly  qualified  as  such  arbi- 
trator, and  heard  the  plaintiff  and  the  defendant  touching  their 

said  matters  of  dispute,  and  thereafter,  on  the day  of 

,  18...,  at ,  duly  made  and  published  his  award, 

in  writing,  of  and  concerning  the  matters  so  referred,  and 
thereby  said  arbitrator  awarded  and  declared,  that  after  due 
appearance  before  him  on  behalf  of  this  plaintiff  and  said  de- 
fendant, he  found  that  the  said  defendant  was  justly  indebted 

to  this  plaintiff  in    the   sum   of   dollars,   for   services 

aforesaid  [or  otherwise,  according  to  the  fact]  ;  a  copy  of  which 
said  award  is  hereto  attached,  marked  "Exhibit  B,"  and  made 
part  hereof. 

III.  That  the  plaintiff  duly  performed  all  the  conditions  of 
said    award  on  his  part,  and  afterwards,  and  on  or  about  the 


§  648.  AWARDS.  809 

day  of ,  18....,  at ,  gave  notice  of  said 

award  to  the  defendant,  and  demanded  of  him  payment  of  the 

said  sum  of  dollars,  so    awarded   to   the  plaintiff  as 

aforesaid. 

IV.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof,  and  there  is  now  due  from  the  defendant  to  the  plain- 
tiff thereon  the  sum  of  dollars,  with  interest  from  the 

day  of ,  18... 

[Demand  of  Judgmbnt.J 

§  647.  Essential  Allegations. — A  complaint  on  an  award 
must  show  that  the  arbitrators  conformed  to  the  submission, 
and  the  powers  of  the  arbitrators.^  It  was  the  rule  at  common 
law,  that  the  plaintiff  need  not  show  the  award  on  both  sides, 
and  if  there  be  a  condition  precedent  it  need  not  be  alleged.* 
But  un  ler  the  code,  performance  of  the  conditions  of  an  award 
must  be  pleaded,  as  well  as  in  the  case  of  a  contract.^  But  if 
the  arbitrators  award  that  one  of  the  parties  shall  pay  to  the 
other  a  certain  sum,  and  also  that  the  parties  shall  execute  to 
each  other  mutual  releases  of  all  actions,  etc.,  the  tender  of  a 
release  as  provided  by  the  award  is  not  a  condition  precedent 
to  the  right  to  try  an  action  to  recover  the  money.*  The  award 
of  money  is  absolute  and  unconditional,  but  the  a  vard  of  release 
is  different;  they  are  concurrent  acts,  and  neither  party  can 
compel  the  other  to  execute  a  release  without  the  tender  of  a 
release  by  him.^  But  where  matters  awarded  to  be  done  are  in- 
dependent, tender  or  demand  before  suit  need  not  be  averred.* 

Where  the  award  was  required  to  be  delivered  to  the  parties, 
an  allegation  that  it  was  ready  to  be  and  was  delivered  to  the 
plaintiff,  is  not  sufflcient.^  Notice  of  the  award  and  demand  need 
not  be  alleged,  unless  required  by  the  terms  of  the  submission.^ 
This  is  not,  however,  the  law  in  California.  There  notice  must 
be  served  on  the  opposite  party  before  in  Igment  is  entered.  ^ 

§  648.  Form  of  Sibmissioa — Wiisn  must  be  in  Writ- 
ing,— In  California,  under  section  12S2  of  the  code  of  proce- 
dure, the  submission  m  ist  be  in  w  iting.  It  may  be  stijiulated 
in  the  submission  that  it  be  entered  as  an   order  of   the  superior 

•  Gear  V.  Brorlcpn,  Burn.  (Wi«.)  88;  'Nichols  v.  Rensselaer  Co.,  22 
Mauh.ws    V.  Matthews,    2    Curt.    C.    W«*ri(i.  12.5. 

Ct.  105.  '  I'rnlt  V.  Hackett.  6  Johns.  14. 

'  Mi'KinstPV  V.  Salomons.  2  Johns.  ^  H>lsilen  v.    Horridsje,    2    Saund. 

67;  Diblee  v."B«st,  11  Li.  105.  62;   Kowe  v.  Young,  2   Brod.    &  B. 

»  (\.le  V.  Biuiit,  2  Bosw.  1 16.  238. 

*  Diidlnv  V.  Thomas,  28  ChI.  .365.  *  See  Code  of  Civil  Procedure,  sec. 
8Diid!pv  V.  Tlio>na3.  23  CaU  365;  12S6. 

Cole  V.  Blunt,  2  Bosw.  116, 


310  FORMS  OF  COMP..AINTS.  §  649. 

court.  When  so  entered  it  can  not  be  revoked  without  the 
consent  of  both  parties,  and  the  award  may  be  enforced  in  the 
game  manner  as  a  judgment.  If  the  submission  is  not  made  an 
order  of  court,  it  may  be  revoked  at  any  time  before  the  award 
is  made.^  The  clerk  must  be  authorized  by  the  stipulaiion  to 
make  a  note  in  his  register,  and  he  must  in  fact  make  it  there ; 
the  mere  authority  without  the  act  done  is  no  more  than  the 
act  done  without  the  authority  would  be.  B  Ah  these  must 
concur,  arid  in  the  absence  of  either  there  is  no  jurisdiction.' 
A  stipulation  that  judgment  in  the  district  court  of,  etc.,  may 
be  rendered  upon  the  award  made  in  pursuance  of  the  submis- 
sion without  a  stipulation  that  the  submission  shall  be  entered 
as  a  rule  of  the  court,  is  not  sufficient.^  If  the  submission  is 
not  made  a  rule  of  court,  an  action  may  be  maintained  upon 
the  award,  as  in  the  case  of  common-law  arbitration.  If  the 
submission  is  not  made  a  rule  of  court,  it  may  be  revoked  by 
either  party  at  any  time  before  the  award  is  made ;  but  the 
party  revoking  is  liable  to  an  action  for  the  costs  and  damngea 
of  the  other  party  in  preparing  for  and  attending  the  arbitra- 
tion.^ In  New  York  an  action  may  be  maintained  upon  the 
award. ^  But  a  verbal  award  will  not  be  valid,  unless  a  verbal 
submission  of  the  matters  on  which  the  award  is  made  would 
be  binding  upon  the  parties.*  If  a  submission  is  attempted  tp 
be  made  under  the  provisions  of  the  statute,  and  the  same  isf 
inoperative  for  failure  to  comply  therewith,  it  is  not  valid  as  a 
common-law  submission.^  But  a  stipulation  that  neither  party 
shall  appeal  from  an  award  is  not  binding.^ 

§  649.  Who  may  Make  Submission. — ^Any  person  capa- 
ble of  contracting  may  submit  to  arbitration  any  controversy, 
except  a  question  of  title  to  real  property,  in  fee,  or  for  life.' 
This  statute  is  but  an  affirmance  of  the  common  law,  and  under 
it  the  parties  have  no  higher  rights  than  they  might  have 
asserted  in  a  court  of  equity,  in  cases  of  fraud,  accident,  or 
mistake.  ^°  As  the  submission  to  arbitration  is  a  contract,  the 
party  making  the  submission  must  have  the  power  to  contract 
with  reference  to  the  subject-matter  in  dispute.  In  general  an 
agent  has  no  authority  to  submit  to  arbitration  unless  expressly 

»  Pee  Code  C.  P.,  sec.  1283.  «  Pronch  v.  New,  28  N.  Y.  147. 

•  Piermt  V.  Kennedv,  48  Crtl.395;  '  TnhabitHnts  of  Deerfield  v.  Arms, 
KvHM  V.  Doui^hertv,  30  Id.  218.  20  Pick.  4S0. 

■«  Frtirohild  v.  Doten,  42  Cal.  128.         »  Muidrow  v.  Norris,  2  Cal.  74. 

*  Code  C.  P..  sec.  1290.  »  Cal.  Code,  sec.  1281. 

»  Cope  V.  Gilbert,  4  D'^nio,  .<?47;  *"  Vluldrow  v.  Norris,  2  Cal.  74;  re- 
Dpidrick  V.  Richipv,  2  Hill,  271;  affirmed  in  Peachy  v.  Ritchie,  4  Cal. 
Hays  V.  Hays,  23  Wend.  303.  205, 


§  652.  AWARDS.  311 

or  impliedly  empowered  by  his  principal.^  But  an  agent  author- 
ized to  prosecute  a  suit,  has  authority  to  submit  to  a  reference, 
under  a  rule  of  court.^  And  it  is  the  practice  throughout  the 
Union  for  suits  to  be  referred  by  consent  of  counsel,  without 
special  auth  ^rity.^  If,  however,  an  unauthorized  submission  is 
ratified  by  the  principal,  he  is  bound  thereby.'* 

§  650.  Th3  Same — Partners— Parties  Jointly  Inter- 
ested.— The  great  weight  of  authority  is  in  support  of  the 
doctrine  that  the  right  to  submit  a  partnership  controversy  to 
arbitration  is  not  included  within  the  ordinary  course  of  part- 
nership business,  and  consequently  t'lat  one  partner,  unless 
expressly  authorized,  has  no  such  power,  so  as  to  bind  his  co- 
partner.5  The  partner  who  makes  the  submission  is  himself 
bound  by  it.^  Persons  jointly  interested  can  not  in  general 
bind  each  other  by  a  submission  to  arbitration  without  express 
authority.''' 

§  651.  Election  of  Remedy. — ^Where  the  submission  is  by 
bond,  the  plaintiff  has  his  election  to  sue  on  the  bond  or  on  the 
award,  if  it  is  merely  for  the  payment  of  money;  but  if  a  col- 
lateral thing  is  awarded,  the  suit  must  on  the  bond,  as  debt  will 
lie  for  money  only.®  Where  a  sum  of  money  is  awarded,  it  is 
sufficient  to  set  forth  only  so  much  of  the  award  as  to  show  a 
good  cause  of  action.*  It  seems  that  a  clause  in  a  contract  pro- 
viding that  in  case  any  dispute  should  arise  in  regard  to  the  same 
it  should  be  settled  by  arbitrators,  is  no  bar  to  an  action  upon  the 
contract.^" 

§  652.  Judgment  upon  Award. — Judgment  may  be  en- 
tered on  an  award  without  an  order  of  the  court."  But  the 
award  shall  be  in  writing,  signed  by  the  arbitrators,  or  a  major- 

*  Troinv.  Emmons,  29  HI.  433.  Bankart,  1  Comp.  M.  «&R.  681  ;  Kart- 

•  Hiicklaiid  V.  Conway,  16  Mass.  396.    haus  v.  Ferrer,  1  Pet.  222;   Buohoz  v. 
?  Hilker  V.  Parker,  7   Cranch,  436;     Grandjean,  1   Mich.   367;    Backus   v. 

Alexandria    Canal    Co.  v.    Swann,  5  Coyne,  35  Id.  5;  Harrington   v.  Hig- 

How.  (U.    f^.)^3;  and  see  Greene  v.  ham,  13  Barb.  660;  Onion  v.  Robinson, 

Darhng,  6  Mason,  201.  15  Vt.  510;  Martin  v.  Thrasher,  40 Id. 

♦  IsHHCS  V.    Beth  Hamedash  Soc,  1  460. 

Hilt.  4f)9:  Detroit  V.  Jackson,  1  Doug.  *  Jones  v.  Bailey,  5  Cal.  345;  Kar- 

(Mich  )  106;  Memphis  etc.  R.  R.  Co.  thnus  v.  Ferrer.  TPet.  222;   \V..od  V. 

V.  Scru-gs,   50   Miss,  284;  Furber  v.  Shepherd.  2  Pa£t.  «fe  H.  (Va.)  442. 

Chamberlain,  29  N.  H.  405;  Perry  v.  '  Eastmnn  v   Burlei>rh.  2  N.  H.  485; 

Mulligan,   58  Ga.  479;  Lowens  e  "n  v.  Smith  v.    Smith,  4  Rand.  95;  Boyd'a 

Mclnl-sh.    37    B  irb.  251;    Smith    v.  H"irs   v.   McGruder's  Heirs.   2    Kob. 

Sweeney,  36  N.  Y.  291.  {Va.)761.     See  this  subj.-ct  discusst-d 

'  J<me8  V.  liailev,  5   Cal.  345;  Bu-  at  lenerth  in  note  to  Hutoftius  v.  John- 

chanan  v.  Currv,  19  Johns.  187 ;  East-  son,  30  Am.  Dec.  626. 

man  v.  Burlt-igh,  2  N.  H.  384;  South-  «  Hodsden  v.  Hnrridge,  2  Saund.  62. 

ard   V.    Steele,    3   T.   B.    Mon.  435;  M  Ld.  Ravm.  115. 

Steiglitz     V.    Esginton.     Holt,     141;  ^  Binsee  v.  Paige.  38  N.  Y.  87. 

Stead  V.  Salt,  8  liing,  101;  Adams  v.  "  Cuisley  v.  Lindsay,  14  Cal,  390. 


312  FOEMS  OF  COMPLAINTS.  §   G53. 

ity  of  them,  and  be  delivered  to  the  parties. ^  The  court  will  n  »t 
disturb  the  award  unless  the  error  complained  of,  whether  of  law 
or  of  fact,  appear  upon  the  face  of  the  award.'  If  a  judgment 
on  an  award  of  arbitrators  is  entered  by  the  clerk,  at  the  request 
of  the  party  in  whose  favor  it  is  rendered,  within  less  than  five 
days  after  the  award  is  filed,  and  without  notice  to  the  other  party, 
the  prevailing  party  can  not  afterwards  question  its  validity  on 
the  ground  that  it  was  irregularly  entered.  ^ 

§  653.  Jurisdiction. — Where  the  court  has  no  jurisdiction 
of  a  subject-matter,  the  arbitrators  can  have  none.*  And  the 
award  being  void,  the  release  of  the  action  by  one  of  the  parties 
•  is  also  void,  if  filed  in  pursuance  of  the  submission. ^  A  court  of 
equity  may  decree  specific  performance  of  an  award.*  This  does 
not  apply  to  real  estate,  as  no  arbitration  or  award  can  be  made 
affecting  the  title  to  real  property  in  California.'  Where  a  party 
receives  the  amount  of  a  judgment  under  an  award,  it  is  a  waiver 
on  his  part  of  all  errors  and  misconduct  on  the  part  of  the  arbitra- 
tors.s  But  a  submission  to  arbitration  of  title  to  real  estate,  be- 
ing prohibited  by  statute,  is  not  merely  voidable,  but  is  void  and 
incapable  of  ratification.^  But,  where,  under  an  agreement  in 
writing,  parties  submit  matters  of  difference  relative  to  the  parti- 
tion of  lands  to  the  award  of  arbitrators,  and  an  award  is  made 
thereunder,  a  specific  performance  of  the  award  will  be  de- 
creed.i°  So  in  New  York  as  to  disputed  boundaries,"  and  in 
Ohio.^2 

§  654.  Where  there  are  three  arbitrators  all  shall  meet,  but 
two  of  them  may  do  any  act  which  might  be  done  by  all,^^  The 
arbitrator  must  make  his  award  within  the  time  limited  in  the 
agreement.^*  An  allegation  that  an  award  was  made,  imports 
that  it  was  ready  to  be  delivered.^^  They  may  select  an  umpire 
either  before  or  after  investigation,  and  may  award  costs.'* 
But  after  an  award  has  been  once  made  and  delivered,  they  can 
not  amend  the  same  without  consent  of  the  parties.^'  They 
shall  be  sworn,  and  a  majority  may  determine  any  question.'* 

1  California  Code,  sec.  1286.  >«  Whitney  v.  Stone,  28  Cal.  275. 

»  T>so  1  V.  Wells,  2  Cal.  122;  over-  "  Sout  v.  Woodward,  5  Hun,  810. 

ruled  as  to  the  report  of  a  referee,  la  ^  Hunt  v.  Guilford,  4  Ohio,  310. 

Cappe  V.  Bnzzolara,  19  Id.  607.  *'  California  Code,  soc.  128");  Glass 

•  Hooajs  V.  Morse,  31  Cal.  128.  Pend>'ry  Min.  Co.  v.  Meyer  Min.  Co., 

•  Williams  v.  Walton,  9  Cal.  142.  1  West  Coast  liep.  290. 
6Muldrow  V.  Norris,  12   Cil.  331.  "  Rvan  v.  Dougherty,  30  Cal   218. 

•  Whitney  v.  Stone,  23  Cal.  275.  »  Munroe  v.  Al.aire,  2  Cai.  320. 

T  Speiicerv.  Winselman,42  Cal.479.  **  Dudley  v.  Thomas,  23  Cal.  365. 

8  Hoojrs  V.  Morse,  31  Cal.  128.  »'  Dudley  v.  Thomas,  23  Cal.  3o6. 

•  Wiles  v.  Peck,  26  N.  Y.  42.  »  Califoruia  Code,  sec.  1285. 


§  658.  AWARDS.  813 

Arbitrators  have  no  common-law  powers  when  appointed  in  the 
mode  provided  by  statute.^ 

§  65.5.  Publication. —  The  arbitrator  cannot  "  award  "  with- 
out "publishing"  his  award,  and  "  publishing "  is  a  teelinieal 
phrase,  merely  implying  that  the  arbitrator  has  finally  disposed 
of  the  case.2  And  when  published,  any  alteration  whatever, 
without  consent  of  the  parties,  will  vitiate  it,^  Notice  of  the 
award  need  not  be  averred,  unless  required  by  the  terms  of  the 
submission.*  No  demand  need  be  alleged  unless  expressly  re- 
quired.^ 

§  656.  Revocation.  —  An  agreement  to  submit  a  matter  to 
common-law  arbitration  is,  both  at  law  and  in  equity,  revocable 
before  the  award  is  given, ^  and  it  cannot  be  made  irrevocable 
by  any  agreement  of  the  parties.'  Otherwise,  it  seems,  of  a 
submission  by  rule  of  court. ^  After  the  arbitrators  have  been 
sworn,  neither  of  the  parlies  has  the  right  to  revoke  the  sub- 
mission.^ 

§  657.  Submission.  —  To  constitute  a  submission  to  arbitra- 
tion under  the  statute,  so  as  to  give  the  award  the  effect  of  a 
judgment,  the  statute  must  be  pursued  in  the  manner  in  which 
the  submission  is  filed  with  the  clerk  ;^<'  and  the  clerk  may  enter 
judgment  on  the  award  in  due  time,  without  any  order  of  the 
court.  1^  And  by  the  statutes  of  California,  the  submission  to 
arbitration  shall  be  in  writing,  and  may  be  to  one  or  more  per- 
sons. ^^ 

§  658.  Vacation  of  Award.  —  The  court  may,  oh  motion, 
vacate  an  award:  1.  Where  it  was  procured  by  fraud  or  corrup- 
tion; 2.  Where  the  arbitrators  were  guilty  of  misconduct;  3. 
Where  the  arbitrators  exceeded  their  powers  ^^  Or  it  may  mod- 
ify or  correct  an  award:  1.  Where  there  is  a  miscalculation  in 
figures;  2.  When  part  of  the  award  is  on  matters  not  submit- 
ted; 3.  When,  if  it  had  been  the  verdict  of  a  jury,  it  could 
have  been  amended,     or  the   imperfection   disregarded.^^     As, 

*  Willinmsv.  Walton,  9  Cal.  145.  •  Commis''ionersMonte:omprv  Co.  v. 
«  Brooke  v.   Mitchell,   6  M.  &  W.      Caspv,    1   Ohio  St.  4  .;s ;     Peilo.  kv. 

473.  Hm1i:4Dh11.  222;  Haskell  v.  Wliiiiiey, 

»  Porter  v.  Scott,  7  Cal.  312.  12  M  iss.  47. 

*  Hoilsilen  V.  Harridge,  2  Saund.  62;  ^^  Heslep  v.  San  Francispo,  4  Cal. 
6M    &W.  474.  1;  ('arsley  v.  Lind-ay,  i4  Id    39i), 

6  Rows  V.  Youn^,  2  Brod.  &  B,  23.3.  "  See  ailso  Eyai  v.   Doiiglieriy,  30 

«8Cu.   R.  81;  Milne  v.    Grjitrix,  7  Cal.  218. 

East,  607:  Clapp  v.  Hifi:huni,  1  Bing.  "  Cal.  Code  Civil  Proc,  sec.  1282. 

89;   Kingv.  Joseph,  5  Taunt.  452.  '»  Cal.  Code  Civil  Proc,  sec.  1287; 

'  Tobev  V.  The  County  of  Bristol,  Morris  etc.  Co.  v.  tialt  Co.,  58  N.  Y. 

8   Storv  C.  Ct.  800.  667. 

*  Mastersoii  v.  Kidwell,  2  Cranch  "  Cal.  Code  Civil  Proc,  sec.  1288. 
C.  Ct.  669. 


314  FORMS  OF  COMPLAINTS.  §   659. 

where  the  object  of  the  submission  is  to  make  an  end  of  litiga- 
tion, and  the  award  is  uncertain  and  incomplete  upon  its  face, 
it  defeats  the  object  of  the  submission  and  must  be  set  aside. ^ 
Where  an  award  is  objected  to  on  the  ground  that  it  embraces 
matters  not  in  fact  submitted,  it  lies  with  the  objecting  party  to 
show  affirmatively  in  what  the  arbitrators  have  exceeded  their 
duty.^     An  award  may  be  good  in  part  and  bad  in  part.^ 

§  659.  Valid  Awards. — The  rule  is  that  arbitrators  must 
pass  upon  all  matters  submitted  ;"*  and  an  award  which  clearly 
goes  beyond  the  issues  submitted  is  invalid  as  a  whole,  where 
the  matter  ultra  vires  can  not  be  separated  without  violating  the 
intent  of  the  parlies. ^  It  seems  that  in  New  York,  "  that  an 
arbitrtitor  made  an  award  "  means  a  qualified  arbitrator,  and 
sufficiently  imports  that  he  was  duly  sworn,  where  an  oath  is 
required.^  An  award  rendered  upon  fair  arbitration,  ard  for  a 
long  time  concurred  in,  must  be  held  to  be  conclusive.'  No^ 
award  implies  no  valid  award. ^  An  award  settles  forever  all 
matters  fairly  within  the  meaning  and  intention  of  the  sul)mis- 
sion  3  An  award  bad  in  part,  may  be  enforced  for  the  part  that 
is  good,  if  not  attacked  for  fraud,  and  the  matter  is  divisible.^" 
It  must  be  certain  and  decisive  as  to  the  matters  submitted,  and 
thus  avoid  all  further  litigation."  Unless  it  is  final  and  conclu- 
sive as  to  the  matters  submitted,  it  is  not  admissible  in  evidence. ^^ 

§  660.     On  an  Award  of  an  Umpird. 

Form  No.  151. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  [Allegation  as  in  pi-ecedin^  form.] 

II.  That  said  A.  B.,  before  they  proceeded  upon  the  said  ar- 
bitration, on  the day  of ,  18....,  by  writing  under 

their  hands,  appointed  one  E.  F.  to  be  umpire  in  the  matter  so 
submitted ;  and  the  said  arbitratO!"S,  after  hearing  the  plaintiff 
and  defendant,  and  not  being  agreed  concerning  the  matters 
submitted  to  them,  the  said  E.  F.  afterwards  undertook  said 
arbitration,  and  heard  the  plaintiff  and  defendant,  and  on  the 
day ,  18...,  the  said  arbitrators  made  their  award, 

1  Pierson  v.  Norman,  2  Cal.   599;  ^  jMrvis  v.  Fountain  Water  Co.,  6 

Jacob  V.  Keltham,  37  Id.  197.  C  «1    179. 

«  IJliiir  V.  V\  Hllace,  21  Cal.  317.  *  Dresser  v.  Stansfleld,   14  M.  &  W. 

»  Williams  V.   W'alion,   9    Id.  146;  82J. 

13  .Johns.  3(34.  »  Brazil!  v.  I«hflm.    12   N.  T.    15; 

*  Muldn.w  V.  Norris,  12   Cal.  831;  Lowenslein   v.  Mcintosh,     87    Barb, 

Portfr  V.  Sfott,  7  Id.  312.  2ol. 

6  White  V.  Arthur.  59  Cal.  33.  i"  Muldrow  v.  Norris  2  CmI.  71. 

'  Browuuig  V,  Wlieeler,  24  Wend.  "  .iMcob  v.  Ketchum,  6l  Id.  l.j. 

258.  « jd. 


§  664.  AWARDS.  315 

in  writing,  that  the  defendant  should   [pay  the  plaintiff 

dollars] . 

111.  That  he  has  not  paid  the  snme.* 

[Dkmand  of  Juugmkxt  ] 

§  661.    Allegation  of  an  Enlargement  of  the  Time 

Form  No.  152. 

[TiTLK.] 

Tliat  oil  the day  of ,  18....,  the  plaintiff  and  de- 
fendant, by  agreement  [in  writing,  of  which  a  copy  is  hereto 
annexed],  extended  the  time  for  making  the  award  until  the 
day  of  18... 

§  662.  Date  of  Award. — An  award  may  be  counted  on  as 
made  at  the  time  of  its  date,  not  at  the  time  as  extended  by 
erasure  or  interlineation.^ 

§  663.  Appointment. — An  umpire  may  be  appointed  by 
parol,  unless  the  submission  require  the  a[)pointment  to  be  in 
writing. 3  Where  an  umpire  has  been  appointed  and  has  entered 
on  the  performance  of  his  duty,  the  authority  to  decide  is  vested 
solely  in  him ;  the  original  powers  of  the  arbitrators  cease  to 
exist.* 

§  664.  PoTver  to  Award. — But  where  two  arbitrators, 
unable  to  agree,  appoint  under  the  submission  a  third  arbitrator, 
the  power  to  make  an  award  is  vested  in  the  three  jointly. 
Wherever,  therefore,  the  action  is  founded  on  an  award,  its  true 
character,  as  the  act  of  an  umpire  or  of  arbitrators,  must  be  set 
forth  in  the  complaint,  in  order  that  a  defeuie  adapted  to  its  true 
character  may  be  set  up  in  the  answer. ^ 

*  The    above    form   of  complaint  '  Elmf^nlorfv.  Tlirris,  5  W(>n<l.  516. 

d^^es  nut  applv   under  the  pmelice  ia  *  Undeiliill    v.    Van   Cortlandt,   2 

California.     The  report   of  a  referee,  Johns.  Ch.  3  19;     Buli<T  v.    Mnvor   of 

and  the  award  of  au  arbitrator,  are  in  N.  Y..  1  Hill,   489;    Mayor  of  N.  Y. 

all   essentials  the  same:  Grayson  v.  v.  Butler,  1  Birb.  32.5. 

Guild,  4  Cal.  122.  »  Ljoa  v.  BiUisom,  4  Duer,  318, 

'  TuuipLius  V.  Corwin,  9  Cow.  2o5. 


816  FORMS  OF  COMPLAINTS.  §  665. 


CHAPTER  III. 

ON  EXPRESS  PROMISES. 

665.  On  an  Express  Promise  in  Consideration  of  a 
Precedent  Debt. 

From  No.  15S, 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  Tliat  on   tlie  .,...  ...  day  of  ,  18  .  .,  at  ,  the 

defendant    was    then  indebted    to  the  plaintiff  in  the   sum   of 

dollars,  for    [state  what].     In  consideration  thereof,  he 

then  promised  to   pay  to  the  plaintiff    the   said  sum,   on  the 
day  of  

II.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Jcjdqmknt.] 

§  666.  Coigid3ratioa. — In  every  action  upon  a  promise  to 
pay,  a  consideration  must  be  stated.^  Such  a  consideration  is 
an  essential  fact  to  be  proved,  and  unless  proved  the  plaintiff 
can  not  recover."^  In  an  action  upon  a  promise  to  pay  money, 
if  the  complaint  contains  no  averment  of  consideration  or  of  in- 
debtedness, except  by  way  of  recital,  it  is  insufficient.^ 

§  667.  Consideration,  in  Parchasa  of  Land. — Defendant 
upon  the  purchase  of  certain  land  from  B.,  agreed  in  writing  as 
part  of  the  consideration,  to  pay  to  plaintiff  a  debt  due  to  him 
by  B.  Plaintiff  afterward  assented,  and  verbally  agreed  to  look 
to  defendant  for  the  debt.  This  was  not  within  the  statute  of 
frauds,  and  plaintiff  may  recover  the  debt  from  defendant.'*  A 
promise  or  agreement  to  convey  lands  in  consideration  of  the 
purchaser's  paying  f  )r  them  out  of  the  profits,  is  void,  as  having 
no  consiileralion.5  A  promise  made  under  mistake,  as  to  lia- 
bility, is  void.^ 

§  668.  Consideration — ^Married  Woman. — The  advance 
of  money  to  the  son  of  a  married  woman  is  not  a  sufficient  con- 
sideration for  her  subsequent  promise  to  repay.' 

§  669.  Consideration  to  Third  Person. — An  action  can  be 
maintained  upon  a  promise  made  by  the  defendant,  upon  a 
valid  consideraiion  to   a  third  person  for   the    benefit    of    the 

1  Bailey  v.  Freeman,  4  Johns.  280.  *  Dorsey   v.     Packwood,    12  How. 

*  Gvie  V.  SoenbHr.  t^  Cal.  6:^8.  U.  S.  1 2i). 

8  ShaCer  V.  B''ar  Kiv^rand  Aub.  W.  *  Od'utt  v.  Parrott,  1   C'ranch  0.  C. 

and  M.  Co.,  4  Ci.l.  2»5.  164. 

4  McLaien  v.  Hutchinson,  22  Cal.  '  Watson  v.  Dunlap,  2  Cranch  0.  C. 

187.  14. 


§  673.  EXPRESS  PROMISES.  "    817 

plaintiff,  although  the  latter  was  not  privy  to  the  consi'leration. 
And  a  creditor  can  maintain  an  action  against  a  person  who 
had  received  money  from  his  debtor  upon  a  promise  to  pay  the 
amount  to  the  creditor.*  Where  A.,  who  is  indebted  to  B. 
promises  in  consideration  of  his  release  by  B.  to  pay  the  ;imount 
to  C,  who  is  a  party  to  the  arrangement,  it  is  a  sufficient  consid- 
eration to  support  such  prom  se.^ 
§  670.    Upon  Compromise  of  an  Action. 

FoTyjt  No.  154, 
[Title] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of  an  action  was  pending 

in  the court,  brought   by  the  plaintiff  to  recover  from 

the  defendant  the   sum  of  d3llars,    for  goods  sold  by 

plaint  ff  to  the  defendant. 

II.  That  on  the  day  of  ,  at  ,  in  consid- 
eration  that  the   plaintiff    would   discontinue    said   action,  and 

would  accept dollars   in    satisfaction   of  his    claim,    the 

defendant  promised   to  pay  the  plaintiff  the  sum    of  

dollars. 

III.  That  the  defendant  accordingly  discontinued  said  action. 

IV.  That  no  part  of  said  sum  has  been  paid. 

[Dkmamd  of  Judgment.] 

§  671.  Essential  Allegations. — An  agreement  to  compro- 
mise, not  unconscientious  or  unreasonable,  must  be  executed, 
without  regard  to  the  merits  of  the  dispute. ^  A  complaint  on  a 
promise  in  consideration  of  a  compromise  should  show  that 
there  was  some  shadow  of  a  claim ;  *  though  it  need  not  show 
that  the  plaintiff  had  a  valid  claim. ^  It  must  also  aver  that  the 
litigation  was  discontinued  according  to  the  compromise.^ 

§  672.  Covenant  to  Sue. — A  covenant  not  to  sue  for 
five  years  is  no  bar  to  the  action ;  but  the  defendant  must  rely 
upon  the  covenant  for  his  remedy."'  A  covenant  not  to  sue, 
made  to  a  portion  only  of  joint  debtors,  does  not  release  any  of 
them. 8 

§  673.  Promise  of  a  Third  Person  to  Pay  Money  to 
Plaintiff. 

Form  No.  155, 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  one  A.  B.  was,  and  ever 

1  Secor  V.  Lord.  3  Keyes.  525.  •  Palmer  v.  North,  85  Barb.  282, 

«  Barringer  v.  "Warden,  12  ChI.  311.  •  Dolcher  v.  Fry,  37  Barb.  162. 

•  Sargent  v.  Lamed,  2  Curt.  340.  '  Howland  v.  Marvin,  5  Cal.  501. 

*  Dolcher  v.  Fry,  37  Barb.  162.  •  Malthey  v.  Gaily,  4  Gal.  62. 


818    '  FOllMS  OF  COMPLAINTS.  §   674. 

since  has  been,  indebted  to  the  plaintiff  in  the  sum  of 

dollars. 

II.  That  on  that  day,  the  said  A.  B.  was  the  holder  of  a  bill 
of  exchange  [describe  it] ,  then  indorsed,  and  delivered  the  same 
to  the  defendant;  in  consideration  of  which  the  defendant 
then  and  there  promised  A.  B,  that  he  would  endeavor  to  col- 
lect the  same,  and  that  when  collected,  he  would  apply  the 
proceeds  in  payment  of  said  indebtedness  of  said  A.  B.  to  the 
plaintiff. 

III.  That  afterwards,  on  the  day  of  ,  the  de- 
fendant collected  and  received  the  same. 

IV.  That  no  part  thereof  has  been  paid  to  the  plaintiff. 

[DKMA.ND  OF   JUDQMKNT.]! 

§  674.  Essential  Allegations. — In  an  action  for  a  broach 
of  an  engagement  to  pay  money  to  A.  for  the  benefit  of  B.,  it  is 
not  necessary  to  aver  that  the  defendant  had  refused  to  [jay  to 
B.,  as  well  as  to  the  plaintiff. ^  But  on  a  promise  to  pay  money 
when  collected,  collection  is  a  condition  precedent,  and  must 
be  averred. 

§  675.  Vendor  of  Lands. — In  a  case  in  California,  defend- 
ant, upon  the  purchase  of  certain  land  from  B.,  agreed  with  him 
in  writing,  as  part  of  the  consideration,  to  pay  to  plaintiff  a  debt 
then  due  the  latter  from  B  Plaintiff  afterwards  assented  to 
the  arrangement,  and  verbally  agreed  with  the  defendant  to 
look  to  him  for  his  debt,  and  release  B.  It  was  held,  that  this 
agreement  was  not  within  the  statute  of  frauds,  and  gave  plaint, 
iff  a  right  of  action  ag:unst  defendant  for  the  debt.^ 

§  676.  When  Action  Lies. — Asmmpsit  is  the  proper  form 
of  an  action  against  a  guarantor  by  one  who  has  given  credit 
on  the  faith  of  a  general  promise  to  be  security.  The  creditor 
is  not  confined  to  an  action  of  deceit.^  When  A.,  by  agreement 
between  him  and  B.,  assented  to  by  C,  becomes  liable  to  pa}'^ 
the  latter  a  debt  originally  due  to  him  from  B. ,  the  assignee  of 
C.  may  maintain  an  action  for  the  debt  in  his  own  name  against 
A.^    Defendant  being  indebted  to  E.  M.   &  Co.,   and  they  to 

*  Thi3  form  is  supportpd  by  Dola-        '  Dodge   v.    Coddington,  8  Johns, 
ware  and  Hudson  Carml  Co.  v.  West-     143. 

Chester  County  Bank,  4  Den.  97.     We  ♦  AlcLiren  v.  Hutchinson,  22  Cal. 

have,  however,  changed   it  by  adding  188.     Whether  the  assent  whs   neccs- 

to  and  striking  out  portions.     Money  sary  to   fix  defendant's  lialiility,  see 

received  by  a  third  person,  on  promise  Lewis  v.  Covillaud,  21  Id.  178. 

to  pay  creditor's  debt,  may  be  recov-  *  Lawrasou    v.    Mason,    3  Cranch, 

ered :  Goddard  v.  Mockbee,  6   Cranch  492. 

C.  C.  6«6.  "Lewis  v.  Covillaud,   21  Cal.  178; 

*  Kowland  v.  Pbalen,  1  Bosw.  48-  McLarea  v.  Uutcbioson,  22  Id.  187. 


§  680.  EXPRESS  PROMISES.  819 

plaintiff,  all  parties  agreed  that  defendant  should  pay  the  amount 
of  his  indebtedress  to  the  company  to  plaintiff.  This  was  an 
equitable  assignment,  and  the  only  mode  of  enforcing  it  is  by 
action  in  the  name  of  the  assignee  to  recover  the  debt.^ 

§  677.  On  a  Fjromis3  to  Pay  for  the  Sarrender  of  a 
Lease. 

Form  No.  156. 

[TlTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  hereinafter  mentioned,  the  plaintiff  leased 

from  the  defendant  a  house  ani  lot  in  the  town  of  ,  for 

a  term  commencing  on  the day  of ,  18...,  and  end- 
ing on  the  day  of ,  18...,  under  which  he  was  en- 
titled to  the  possession  of  said  house  and  lot. 

II.  That  on  the  day  of ,  18...,  the  defendant 

promised  the  plaintiff  that  in  consideration  that  he,  the  plaint- 
iff, would  surrender  to   the  defendant  the  unexpired   tei'm  and 

the  possession,  he  would  pay  the  plaintiff  the  sum  of 

dollars. 

III.  That  the  plaintiff  thereupon  surrendered  the  unexpired 
term  of  said  lease,  and  the  possession  of  said  land  to  the  de- 
fendant. 

IV.  That  no  part  of  said  sum  has  been  paid. 

[Demand  op  Judgment.] 

§  678.    For  the  Furchase  Monsy  of  Land  Conveyed. 

Fonn  No.  157, 
[Title]. 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the day  of 18...,  at  ,  the 

plaintiff  sold  and  conveyed  to  the  defendant  [the  house  and  lot 
No.  203  street,  in  the  city  of   ]. 

II.  Tliat  defendant  promised  to  pay  the   plaintiff  

dollars  for  the  said  [house  anl  lot]. 

III.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  679.  Consideration  of  Deed. — In  New  York  an  action 
will  lie  for  ihe  consideration  of  a  deed,  although  there  was  no 
valid  contract  under  the  statute  of  frauds,^  even  when  the  deed 
contains  a  receipt  for  the  consideration. ^ 

§  630.  Delivery. — Under  a  verbal  contract  of  sale  of  real 
estate,  the  delivery  of  the  title  deeds  is  equivalent  lo  a  symbol- 

>  WipTJ^ins  y.  McDonald,  18  Cal.  128. 

«  Thomns  v.  Dickinson,  12  N.  Y.  364. 

•SuepUard  v.  Little.  U  Jolius.  210;  Thomas  r.  Dickinson,  12  N.  Y.  861. 


320  FORMS  OF  COMPLAINTS.  §   681. 

ical  delivery  of  and  admission  into  the  possession  of  the  prop- 
erty, as  between  vendor  and  vendee. '^ 

§  681.  Request  is  Implied  by  the  Word  "  Sold."2  A 
faihire  on  the  part  of  the  vendee  to  pay  the  purchase  m  )ney  for 
two  years  and  more,  does  not  forfeit  his  right  under  the  con- 
tract, as  the  vendor  may  enforce  the  payment  at  any  time  after 
it  is  due. 3 

§  682.    Allegation  of  New  Promise. 

Form  No.  158. 

That  thereafter,    on  the    day  of   ,    at  ,   in 

consideration  of  the  foregoing  facts  the  defendant  promised  to 
the  plaintiff,  in  writing,  that  he  would  pay  such  indebted- 
ness. 

§  683.  Statute  of  Limitations— New  Promise. — It  is 
well  settled  with  reference  to  actions  for  moneys  due  on  con- 
tracts, that  the  statute  does  not  discharge  the  debt,  or  in  any 
way  extinguish  the  right  or  destroy  the  obligation,  but  only 
takes  away  a  remedy.  The  debt  remains  unsatisfied  and  unex- 
tinguished. It  is  a  sufficient  consideration  to  support  a  new 
promise.'*  In  some  of  the  states,  where  there  is  a  new  promise 
to  pay  a  co:itinuirig  debt,  although  the  creditor  may  sue  on  tlie 
old  debt  and  give  the  new  promise  in  evidence,  he  may,  on  the 
other  liand,  sue  on  the  new  promise.*  Where  a  debtor  promises 
to  pay  Wiien  able,  and  the  creditor  does  not  wait,  but  proceeds 
immediately  on  the  original  obligation  before  defendant  is  able 
to  pay,  he  can  not  afterwards  resort  to  an  action  of  assumpsit 
on  the  new  promise.  In  Iowa  the  new  promise  must  be  alleged.^ 
And  in  Missouri,  under  the  statute  of  1845,  and  in  the  revision  of 
1855,  the  promise  or  acknowledgment  must  be  in  writing,  or  it 
is  of  no  effect. '^  In  Ohio  the  rule  seems  to  be  that  wliere  a  new 
promise  or  acknowledgment  has  been  made,  the  plaintiff  may 
state  the  demand  barred,  as  a  consideration  of  the  new  promise, 
and  allege  the  new  promise  in  writing  as  the  cause  of  action. * 
By  the  practice  in  New  York  the  complaint  may  be  made  on  the 
original  demand,  and  if  the  statute  of  limitations  be  pleaded, 
the  new  promise  may  be  given  in  evidence  without  an  allega- 

>  Tohler  v.  Folsom,  1  Cal.  207,  and  Ang.  on  Lim.,  p.  268,  sec.  213;    Cha- 

note.  bot  v.  Tucker,  39  Cal.  4-ii. 

*  1  Saund.  264,  note  I;  Comstockv.  *  Lonsdale  v.  Brown,   4    Wash.  0, 
Smith,  7  Johns.  87 ;  Parker  v.  Crane,  Ct  148. 

6  Wend.  647.  6  Id. 

»  Gouldin  v.  Buckelew,  4  Cal.  107.  »  Blackburn  v.  Jackson,  26  Mo.  808. 

*  Townsend  v.  Jemison,  9  How.  U.  ■  Sturges    V.   Burton,     8  Ohio  6t. 
S.  413 ;   Bulicer  v.  Roche,  11  Pick.  37 ;  215, 

Lincoln  v.  Battelle,  6  Wend.    485; 


§  684.  EXPRESS  PROMISES.  821 

tion.^  And  the  same  rule  applies  after  a  discbarge  in  bank- 
ruptcy or  insolvency.' 

Wlien  a  promise  to  pay  a  debt  is  relied  on  to  take  a  case  out 
of  the  statute  of  limitations,  it  is  not  necessary,  in  pleading,  to 
allege  tliat  it  was  in  writing,  signed  by  the  party. -^  It  is  other- 
wise in  California.^  In  that  state  it  is  held  that  where  the 
acknowledgment  is  made  while  the  contract  is  a  subsisting  lia- 
bility ;  that  is,  before  it  has  become  barred  by  the  statute,  it 
establishes  a  continuing  contract ;  but  when  made  after  the  bar 
of  the  statute,  a  new  contract  is  created.  It  is  not  held  that 
the  statute  raises  a  presumption  of  payment,  but  bars  the  rem- 
edy. That,  therefore,  when  the  creditor  sues  after  the  statute 
has  barred  the  original  contract,  his  cause  of  action  is  not  upon 
the  original  contract,  but  upon  the  new  promise,  whether  it  be 
in  form  a  new  promise,  or  an  implied  promise  arising  from  the 
acknowledgment;  the  consideration  being  the  original  contract, 
which,  though  barred  by  tiie  statute,  is  binding  in  foro  con- 
scientm.'^  That  the  statute  acts  only  on  the  remedy,  and  does 
not  raise  a  presumption  of  payment.^  In  New  York  it  has  been 
held  that  where  there  is  a  new  promise  to  pay  a  debt  barred  by 
the  statute  of  limitations,  it  is  not  necessary  to  count  upon  this 
as  a  new  contract ;  but  the  action  may  be  brought  upon  the 
original  obligation.'  The  time  of  such  new  promise  must  be 
di'finitely  averred.  An  averment  of  repeated  acknowledgments 
will  not  suffice.^  The  acknowledgment  must  be  a  direct,  dis- 
tinct, unqualified,  and  unconditional  admission  of  the  debt 
which  the  party  is  liable  and  willing  to  pay.^  When  the  new 
promise  is  coupled  with  a  coadition,  ic  should  be  so  alleged, 
and  performance  must  be  averred  ^^ 

§  684.  Rsq-test, — Allegation  that  plaintiff  refused,  etc., 
though  then  and  there  particularly  requested  to  do  so,  is  a 
sufficiently  explicit  allegation  of  a  request  to  amount  to  a  posi- 
tive averment. ^^  Where  the  agreement  is  to  pay  on  request  the 
debt  of  another,  if  he  does  not  pay  on  the  day,  a  special  request 
must  be  averred.  The  general  allegation  "  though  of  ten  re- 
quested" is  not  enough. ^2 

» Esspl-tvn  V.  Weeks  12  N.  Y.  635.  »  Van  Alen  v.  Feltz,  9  Abb.  PV. 

Clarn  V.  Atkinson.  2  E.  D.  Smith.  112.  277  ;  Sa.nds  v.  St.  Johns,   23  How.  Pr. 

*Shippey  v.  Henderson.  14  Johns.  140. 

178;  Depny  v.  Swsri.  .3  Wt>nd.  185.  ^Bloodgood   v.    Bruen  8  N.  Y.  3R2. 

«  Lynch  v.  iluegrave,   Hayes  &  J.  •  MeCormick  v.  iirown,  36  Cal.  185, 

821.  and  ca^estliern  cited. 

♦  Porter  v.  Elam.  25  Cal.  291 .  >'*  Wait  v.  Morris,  6  Wend.  894. 

6  McCormick  v.  B-»wn,  36  Cal.  180;  ^  Supervisors  of  Allegany  v.  Van. 

Chab  .1  V.  Tucker.  89 1 1.  4.S8.  Ca-npen,  3  Wend.  48. 

•S  e  Johnson  v.  Albany  etc.  R.  R.  "Bush  v.  Stevens,  24  Wend.  256» 
Co.,54N.Y.  416. 

liiiTKJi.  Vol.  1—21 


322  FOKMS  OF  COMrLAINTS.  8  o85. 


CHAPTER  IV. 

GOODS  SOLD  AND  DELIVERED. 
:§  C85.  Goods  sold  and  Delivered. 

Form  No.  159, 
[TnLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of  ,  18  ..  [or  between  two 

dates,  naming  them],  at  ,  the  plaintiff  sold  and  deliv- 
ered to  the  defendant,  at  his  request,  certain  goods,  to  wit  [de- 
scribe the  property  sold,  briefly,  at  least  as  to  its  general  char- 
acter] . 

II.  [Allege  the  price  agreed  to  be  paid,  or  the  reasonable 
value  of  the  goods,  as  the  case  may  be.] 

III.  That  the  defendant  has  not  paid  the  said  sum,  nor  any 
part  thereof  [if  any  payments  have  been  made,  add,  except, 
etc.,  stating  payments]. 

[Demand  of  Judgment.] 

$  686.  The  Same — Another  Form — Common  Count. 

Form  No,  160, 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18  ...  [or  between  two 

dates,  naming  them],   at   ,  the  defendant    was  indebted 

to  the  plaintiff  in  the  sum   of   dollars,  on    an   account 

for  goods  [describe  the  property  sold  briefl  y,  at  least  as  to  its 
general  character]  sold  and  delivered  by  the  plaintiff  to  the 
defendant  on  the  day  aforesaid  [or  between  the  dates  aforesaid] 
at  his  request. 

II.  That  the  defendant  has  not  paid  the  said  sum,  nor  any 

part,  thereof  [if  any  payments  have  been  made,  add,  except,  etc., 

stating  payments] . 

[Demand  of  Judgment.] 

%  687.  Essential  Allegations — Amount  Due. — The  failure 
to  state  the  amo  ints  due,  severally,  for  goods  and  for  money,  in 
a  confession  of  judgment,  would  be  fatal. i 

§  688.  The  Same — At  his  Request. — ^The  averment,  **  at 
his  request,"  is  not  requisite  in  New  York.^ 

§  689.  The  Same — D ascription  of  Goods. — A  party  must 
be  presumed  to  know   wliat  was   intended   by  his  account,  and 

»Corclier  v.   Schloss,  18    Cnl.  576.      Pr.24;  Glenny  v.  Hitchins,  4  Id.  98; 
*  Acome  V.  Amer.  M-in.  Co^  11  Huw.    Yicwrd  v.  Davis,  1  Duwl.  &  L.  986. 


§  692.  GOODS  SOLD  AND  DELIVERED.  823 

therefore,  where  a  bill  of  sale  is  set  forth  in  hoec  verba,  it  reme- 
dies a  fit'fect  in  the  description  of  the  quantity  of  goods  sold.^ 

§  (590.  The  Same — Impliad  Promise. — Tlie  implied  prom- 
ise to  pay  is  matter  of  law,  and  should  not  be  pleaded. ^  Under 
a  count  for  goods  sold  and  delivered,  the  plaintiff  may  show 
that  his  chattels  had  been  wrongfully  converted  by  a  sale  of 
them  by  the  defendant,  who  had  received  the  money  therefor, 
or  hi-  may  waive  the  tort  and  sue  for  goods  sold.-* 

§  691.  The  Sime — Common  Counts. — A  count  in  the  or- 
dinary form  of  co'mts  in  indebitatus  assumpsit  for  goods  sold  and 
delivered,  is  sufficient.^  Thus,  an  allegation  that  the  defendant 
is  indebted  to  the  plaintiff  in  a  certain  sura  for  goods  sold  and 
delivered  to  him  at  his  request,  and  that  defendant  has  not  paid 
for  the  same,  states  a  cause  of  action.^  A  complaint  alleging 
that  between  specified  days  the  plaintiff  sold  and  delivered  to 
defendant,  at  his  special  instance  and  request,  a  large  quantity 
of  boots  and  shoes  of  a  specified  value,  and  that  there  is  due 
and  unpaid  therefor  a  sura  designated,  which  he  promised  to 
pay,  but  though  often  requested  by  them,  has  wholly  refused,  is 
sufficient  on  deraurrer.^  But  a  declaration  is  insufficient  which 
alleges  an  indebtedness  and  sets  forth  an  account,  but  does  not 
allege  the  sale  or  delivery  of  the  articles  to  the  defendant,  nor 
show  in  what  place  or  what  manner  the  indebtedness  accrued, 
whether  on  account  of  the  defendant  or  that  of  another.''^ 

In  a  complaint  in  an  action  by  several  plaintiffs,  to  recover  for 
goods  sold  and  delivered,  an  allegation  of  partnership  is  not 
necessary,  and  an  allegation  of  sale  and  delivery  sufficiently 
implies  that  the  goods  belong  to  the  plaintiff.^  That  the  plaint- 
iff had  purchased  a  quantity  of  goods  from  W.  &  P.,  then  and 
there  acting  as  agents  of  the  defendant,  is  only  another  form  of 
declaring  that  he  had  purchased  from  the  defendant,  and  is 
good  on  demurrer.  Where  the  complaint  sets  forth  in  hceo 
verba  the  bill  of  sale,  it  was  held  to  remedy  a  defect  in  the  de- 
scription of  the  quantity  of  goods  sold.^ 

§  692.    The  Same— Short  Form. 

Form  No.  161. 
[Titltc]. 

The  plaintiff  complains,  and  alleges : 

*CorhrRn  v.  Goodmnn,  3  Cal.  244.  son,  7  N.  T.  476;  Hisrsjlns   v.  Ger- 

*FHrron  v.  Sherwood,  17  N.  Y.  227.  mHine,  1  Mon.  230;  see  ante,  see,  B18. 

'Harpending     V.    Shoemaker,    87         '  Abadie  v.  CHrrillo,  32  Cnl.  172. 
Barb.  2t0.  •  Phillips  v.  Bartleit,  9  Bosw.  678. 

♦Freeborn  v.  Glazer,  10  Cal.  887;         ^Mershon  v.  Kandall,  4  Cal.  824. 
Abudie  v.  Carrillo,  32  Cal.  172;  Magee         "  Phillips  v.  Bartlett,  9  B  .sw.  678. 
V.  Kaat,  49  Id.  141 ;  Allea  v.  Falter-        »  Oochraa  v.  Goodman,  3   Ual.  244. 


324  FORMS  OF  COMrLALNTS.  §   693. 

I.  That  on  the day  of ..../,  18...  [or  between  certiiin 

dates,  naming  thetn],  the  defeniUint  was  indebted  to  the  phiintiff 

in  the  snra  of do  lars,  on  an  account  for  goods  then  sold 

and  delivered  by  the  plaintiff  to  the  defendant  at  

II.  That  he  has  not  paid  tlie  same  nor  any  part  tliereof.^ 

[Demand  of  Judgment.] 

§  G93.  Balance  of  Account  for  Goods  Sold. — Wliere  a 
complaint  stated  a  cause  of  action  for  goods  sold,  and  in  addi- 
tion, with  a  view  to  meet  a  probable  defense  of  payment  based 
upon  the  giving  of  certain  notes  by  defendant,  and  a  receipt  in 
full  by  plaintiff,  stated  the  m  king  of  the  notes  and  receipt,  and 
alleged  facts  attending  the  transaction,  which,  if  true,  avoided 
its  effect  as  payment,  by  reason  of  fraud  and  misrepresentation 
on  the  part  of  the  defendant,  it  was  held,  that  the  allegations 
of  the  complaint  in  reference  to  the  transaction  claimed  to  oper- 
ate as  payment,  were  not  material  allegations  requiring  a  denial, 
and  were  not,  therefore,  admitted  by  the  failure  of  defendant  to 
deny  them.^ 

§  694.  Nature  of  Claim. — The  complaint  should  indicate 
the  nature  and  character  of  the  claim,  and  the  period  within 
which  it  arose.  3 

§  695.  For  Goods  Sold  and  Delivered  at  a  Fixed  Price. 

Form  No.  16g. 

[TlTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on   the day    of  ,  18..,  at , 

he  sold  and  delivered  to  the  defendant  [fifty  casks  of  sugar,  or 
other  goods,  describing  them] . 

II.  That  the  defendant  then  promised  to  pay dol- 
lars for  the  said  goods  [in  gold  coin  of  the  United  States]. 

III.  That  he  has  not  paid  the  same  nor  any  part  thereof. 

[Dkmand  of  Judgment.] 
§  696.  Debt,  when  Due. — It  is  not  necessary  to  specify 
any  time  at  which  the  debt  was  to  be  paid.*  A  general  promise 
is  to  be  construed  as  a  promise  to  pay  immediately. ^  And  if 
the  promise  was  to  pay  at  a  certain  time  not  yet  elapsed,  it  is 
matter  of  defense.^  But  if  a  day  was  fixed,  it  will,  if  stated, 
furnish  a  day  for  the  commencement  of  interest.' 

*  This  form  is  supported  by  Allen  *  Peets  v.  Bratt,  6  Bnrb.  622 ;  Gibbs 

V.  Patterson,  7  N.   Y.  476;  Adams  v.  v.  Sotham,  6  Barn.  &  Adol.  911. 

Holley,  12  How.  Pr.  326;    Cudlipp  »  Peets  v.  Bratt,  6  Barb.  622 ;  Gibba 

V.  Whipple,  4  Duer,  610;  Graham  v.  v.  Sotham,  5  Barn.  &  Ad.d.  911. 

Caraman,  5   Id.  697;  Chamberlain  v,  «  Smith  v.  Holmes,  19  N.  Y.  271. 

Kavlor,  2  E.  D.  Smith,  134.  '  Van  JRensselaer  v.  Jewott,  2  N.  Y. 

«  Hanfield  v.  Tobias,  21  Cal.  859.  140. 

«  F&tcy  V.  Lee,  10  Abb.  Pr.  143. 


§  702.  GOODS  SOLD  AND  DELIVERED.  326 

§  697.  Demand. — No  demand  is  necessary.^  On  an  agree- 
ment lo  pay  on  request,  though  no  request  is  necessary,  a  de- 
mand is  necessary  if  the  promisor  be  a  surety.^  But  upon  a 
state  of  facts  in  which  a  demand  would  be  necessary  if  the 
plaintiff  sued  for  damages  for  conversion,  it  is  equally  necessary 
where  lie  sues  upon  the  implied  contract,  waiving  the  tort.^ 
The  averment  of  the  demand  is  proper,  to  fix  the  time  of  inter- 
est.-* 

§  698.  Gold  Coin. — Where  there  is  a  verbal  understanding 
that  the  price  of  the  goods  sold  shall  be  payable  in  gold  coin, 
it  may  be  enforced,  if  after  the  debt  has  accrued  and  suit  has 
been  commenced,  one  of  the  firm,  in  the  firm  name,  makes  a 
contract  in  writing  to  pay  in  gold  coin,  said  contract  dated 
before  the  sale  of  such  goads,  provided  the  complaint  avers  a 
contract  to  pay  in  gold,  made  before  the  goods  were  sold.^ 

§  699.  Haec  Verba. — When  the  comi)laint  sets  forth  in  hcBC 
verba  the  bill  of  the  articles  purchased,  it  is  sufficient  to  inform 
the  defendant  with  what  he  is  charged,  for  he  is  presumed  to 
know  what  is  intended  by  his  own  account.  And  it  was  held 
to  remedy  a  defect  in  the  description  of  the  quantity  of  goods 
sold.^ 

§  700.    The  Same,  at  a  Reasonable  Price. 

Form  No.  16S. 

[TlTLTC] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at , 

he  sold  and  deliv*»red  to  the  defendant  [describe  the  articles]. 

II.  That  the  same  were  reasonably  worth  dollars. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Demand  of  Judgment.] 

§  701.  Debt  Dae. — It  is  not  necessary  to  show  that  the  debt 
was  due  before  the  commencement  of  the  action,  nor  even  at 
the  date  of  the  com[)laint.' 

§  702.  Promise. — The  promise  to  pay  alleged  in  the  com- 
mon count  in  a-<sumpsit  was  a  more  conclusion  of  law  from  the 
facts  stated,  and  need  not  be  averred  under  the  code,  which 
requires  only  the  facts  to  be  stated.**  From  the  indebtedness 
admitted,  the  law  implies  a  promise  to  pay,  and  the  denial  of 

1  Gibhs  V.  SoutTiftm,     5    Barn.     &        *  TlfiPrs  v.  R»vnolcl!>.  1  K^rn.  97. 
Ad'-I.  911;  Lake  Ouiario  R.  H  Co.  v.         *  M«ver  v.  fcLohii.    29  Cal.  216',  866 

Ma   .n,  16  N.  Y.  451.  Cai.  Code  C.  P.,  sec.  667. 

•  N'elson  V.    Bosiwick.    5  Rill,    87;         *  Cochran  v.  Goodman,  3  C«l.  245. 
D  .iisrlH^sv.  R«thb<ine.  Id.  l4o.  »  Smith  v.  Holmes,  l9  N.  Y.  271. 

*  bpuur  V.  Newell,  8  Uill.  aOJ.  *  V\  ilkins  v.  Pledger,  22  Cnl.  262. 


326  FORMS  OF  COMPLAINTS.  §  703. 

any  express  promise  raises  no  issue. ^  The  law  implies  a  prom- 
ise to  piy  so  much  as  the  goods  are  reasonably  worth.  This  is, 
however,  a  matter  of  law  and  should  not  be  pleaded.^ 

§  703.  Value,  Allegation  of. — The  allegation  of  value  is 
material. 3 

§  704.    The  Same,  on  Specifi3d  Fiice  and  Credit. 

Foj-m  No.  164, 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of  ,  18...,  at ,  the 

plaintiff  sold  and  delivered  to  the  defendant,  at  his  request 
[describe  articles],  for  the  sum  of dollars. 

II.  That  the  defendant  promised  to  pay  therefor  to  the  plaint- 
iff the  said  sum  of dollars,  on  or  before  the day 

of ,  18 

in.  That  he  has  not  paid  the  same,  nor  any  p  art  thereof. 
[Dkmand  of  Jddgmbnt.] 

§  705.  Demand,  Averment  of. — The  object  of  averring  a 
demand  is  simply  to  carry  interest.  It  has  been  held  in  New 
York  that  where  goods  are  purchased  at  a  price  fixed,  and  with- 
out fixing  any  term  of  credit,  if,  after  reasonable  time  elapses, 
the  account  is  presented  and  impliedly  admitted,  interest  is 
properly  chargeable  from  the  time  of  the  demand.* 

§  706.  The  Same,  by  Assignse  for  Price  of  S  ock  and 
Fi:stures  of  Store  ani  Good  Will,  Payable  by  Install- 
ments. 

Form  No.  165, 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18  ..,  at ,  one 

A.  B.  sold  and  delivered  to  the  defendant  the  stock  and  fixtures 

of  the  grocery  store,  No ,  in  street,  in , 

the  property  of  said  A.  B.,  and  bargained,  sold,  and  relin- 
quished to  the  defendant  the  good  will  of  the  business  thereto- 
fore carried  on  by  the  said  A.  B. 

II.  That  the  defendant  promised  to  pay  to  the  said  A.  B. 
therefor  the  sum  of  dollars,  in  five  equal  monthly  in- 
stallments, the  fir^t  installment  to  be  paid  on  the day  of 

,  18...,  and  the  remaining  installments  to  be  paid  on 

the day  of   each  succeeding  mouth,  until    all  shall  be  paid. 

iLevison  v.   Schwartz,    22     Cal.         *  Gregory  v.  Wright,  11  Abb.  Pr. 

229  417 

«  Fairoa  v.  Sherwood,    17  N.  Y.        ♦  Beers  v.   Reynolds,  UN.   Y.  97 

230.  102 ;  atfiriaiDg  S.  U.,  '62  Barb.  288. 


§  708.  GOODS  SOLD  AND  DELIVERED.  327 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

IV.  [Allege  assignment  to  plaintiff.] 

[Demand  of  JuDOMairr.J 

§  707.  Good  Will. — Good  will  of  a  trade  is  the  prohability 
that  the  business  will  continue  in  the  future  as  in  the  past,  add- 
ing to  the  profits  of  the  concern,  and  contributing  to  the  means 
of  meeting  its  accruing  engagements,  and  is  an  element  to  be 
considered  in  determining  whether  at  a  given  date  the  parties 
conducting  the  business  were  solvent.  It  is  a  part  of  the  part- 
nership property,  and  adds  to  the  value  of  property  and  stock, 
and  will  accompany  the  sale.^  Plaintiff  having  bought  certain 
horses  of  defendant,  as  also  the  "good  will"  of  a  mercantile 
house  in  the  matter  of  draj'age,  can  not  sue  to  recover  back  the 
purchase  money  on  the  ground  that  such  "good  will"  is  not 
vendible.  3 

§  708.  The  Same,  by  a  Firm  in  which  there  is  a  Dor- 
mant Partner,  the  Price  being  Agreed  upon. 

Foitn  No.  166. 
[Static  and  County.]  [Cotjbt.] 

A.  B.,  J.  H.,  and  J.  C.  J.,  1 

Plaintiffs,    ( 
against  C 

John  Doe,  Defendant.  / 
The  plaintiffs  complain  of  the  defenriant,  and  allege: 

I.  That  the  plaintiffs  are  copartners  in  business  in  the  city  of 
San  Francisco,  under  the  firm  name  of  B.  &  H.,  and  that  said 
pbiintiff,  J.  C.  J.,  is  a  dormant  partner  in  said  firm. 

II.  That  on  or  about  the day  of ,  18...,  the 

said  plaintiffs,  in  their  firm  name,  sold  and  delivered  to  defend- 
ant a  certain  quantity  of  merchandise,  to  wit,  dry  goods,  in  the 
quantities  and  at  and  for  the  prices  specified  in  the  bill  thereof, 
hereto  annexed,  marked  "Exhibit  A,"  and  made  part  of  this 
complaint,  amounting  to  the  sum  of dollars. 

HI.  That  defendant  promised  to  pay  tlie  same  at  the  expira- 
tion of  four  months  from  the  said  date  of  sale. 

IV.  That  said  time  has  elapsed,  and  the  said  defendant  has 
not  paid  the  same  or  any  part  thereof.  ^ 

[DkMAND   of  J  UDQMKNT.] 

'Bell  V.  Ellis,  83  Cal.  620.  bpc.  142.     That  a  dormant  party  is  a 

*  BuckJngliain  v.  Waters,  14  Cal.  nfcessary  party  DlHintitf.  see  Sncorv. 
146.  K*»ller,  4  Duer.  41^1 ;  comnare  BeLshaw 

*  As  to  the  necessity  of  joining  the  v.  Colie,  1  £.  D.  Smith,  213. 
durmaut  parluer  as  plaintiff,  see  ante. 


828  FORMS  OF  COMPLAINTS.  §  709. 

§  709.  For  Goods  Delivered  to  a  Third  Party  at  De- 
fendant's Request,  at  a  Fixed  Price. 

Form  No.  167. 
[Title.] 
The  plaintiff  complains,  and  alleges : 

I.  That  on  the day  of  ,  18  ...,  at , 

he  sold  to  the  defendant  [two  hundred  bags  of  coffee],  and  at 
the  request  of  the  defendant,  delivered  the  same  to  one  A.  B. 

II.  That  the  defendant  promised  to  pay  to  the  plaintiff 
dollars  therefor. 

III.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Dbmand  op  Jupqmknt.] 

§  710.  Delivery. — When  goods  sold  are  delivered  to  a  third 
person  for  the  exclusive  use  of  such  person,  the  plaintiff,  in  an 
action  against  the  purchaser,  is  bound  to  aver  delivery  to  the 
third  party  in  the  complaint.  It  is  only  as  a  conclusion  of  law 
that  such  a  delivery  amounts  to  a  delivery  to  the  purchaser.*  But 
a  variance  in  this  respect  may  be  disregarded  if  the  defendant 
does  not  appear  to  have  been  misled. ^ 

§  711.  Who  Liable. — That  person  is  liable  to  whom  the 
creditor  at  the  time  gave  the  credit.^  But  if  the  credit  is  not 
given  to  the  person  making  such  agreement,  his  undertaking  is 
collateral,  and  must  be  in  writing.^ 

§  712.  For  Goods  Sold,  but  not  Delivered,  Price  Fixed. 

Form  No.   168. 

[TlTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18  ...,  at ,  he 

sold  to  the  defendant  [all  the  potatoes  then  growing  on  his  farm 

in ]. 

II.  That  defendant  promised  to  pay  plaintiff dollars 

for  the  same. 

III.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Dkmand  of  Judgment.] 

*  Smith  V.  Leland,  2  Duer,  497.  Chit  on  Cont.  226;  Story  on  Agency, 

•Rogers  v.  Verona,  1  Bosw.    417;  213.  sec.  263;  Smith's  Merc.  L.  212. 

Briiy-jsv.  Evins,  1  E.  D.  Smith,  192;  *  Dixon  v.  Frazee,   1  E.  D.  Smith, 

<Sturr  V.  Scutt,  6  (Jarr.  &  F.  241;  82;  Briggs  v.  Evans,  Id.  192. 


§   714.  GUARANTIES.  829 


CHAPTER  V. 

GUARANTIES. 

§  713.    Against  Principal  and  Suretiss  on  Contract  for 
Work. 

Form  No.  169, 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  Tliat  on   the day   of  ,  18...,   at , 

certain  articles  of  agreement  were  made  and  entered  into  be- 
tween the  plaintiff  and  the  defendants   under  their  respective 

hands  and  seals,  and  bearing  date  the day  of 

18....,of  which  the  following  is  a  copy  [insert  copy]. 

II.  That  the   plaintiff  afterwards  duly  performed  all  the  con- 
ditions of  the  said  contract  on  his  part,  and  that  the  same  was 

fully  completed  on  the day  of ,  18..,,  and  that  on 

that  day  he  was  entitled  to  have  and  receive  from  the  said  de- 
fendants, upon  the  said  contract,  for  the  said  woric,  mentioned 
in  the  said  agreement,  a  large  sum  of  money,  viz. ,  the  sum  of 
dollars. 

III.  That  the  said  defendants  have  wholly  failed  to  perform 
the  said  contract  on  their  parts. 

IV.  That  they  have  not  paid  the  same,  nor  any  part  thereof. 

[D  KM  AND  OF  Judgment.] 
§  714.  Absolute,  Conditioaal,  and  Continuing  Guar- 
anties— Demand. — A  meie  offtr to  guarantee  is  not  binding  unlil 
notice  of  its  acceptance  is  comm  .uicated  by  the  guarantee  to 
the  guarantor,  but  an  abs')liite  guaranty  is  binding  upon  the 
guarantor,  without  notice  of  acceptance.^  In  cases  of  a  clear 
and  absolute  guaranty,  demand  on  the  principal  and  notice  to 
the  guarantor  is  not  necessary. ^  But  the  guarantor  is  to  pay,  in 
case  the  principal  fails  to  pay  on  demand,  a  demand  is  neces- 
sary, and  must  be  averred  and  proved. ^  If  one  guarantees  a 
debt  to  be  collected  by  himself,  demand  on  the  principal  debtor 
need  not  be  shown;  otherwise  on  a  demand  against  one  who 
merely  guarantees  a  debt  where  the  creditor  is  to  collect.^    Thus 

1  ChI.  Civil  Code,  sec  2795.  Fire  Ins.  Co.  v.  Oirden,  1  Wond.  187; 

'Alien  V,  Ri^htmere,  20.Ji.linp.365;  JMorrisv.  Wadsworlh,  11  LI.  100. 

Mann   v.  Ecktord's  Ex'rs,  15  Wend.  '  Douglass  v.  Ralhbone,  6  Hill,  143} 

502;   Kemble  V.   Wallis,    10  Id.  374;  Bank    of   N.   Y.    v.   Livioirsione,   2 

Rushnicre  v.  Miller,  4  Edw.  Ch.  84;  Johns.  Gas.  409;  Nelson  v.  Bostwick, 

Van  Rens-elMPr  v.  Miller,  Hill  &  D.  6  Hill,  37;  Bush  v.  iSievens,  24  Wond. 

Siipp.  2.S7;  MrKenzie  V.    Farrell.    4  256. 

3u8W.  192;  L»u I  compare  Mechanics'  *  Milliken  v.  Bjerly,  6  How.  Fr.  214. 


330  FORMS  OF  COMPLAINTS.  §   715. 

in  an  action  where  the  plaintiff  guaranted  that  certain  certifi- 
cates of  stock  sliould  pay  ten  per  cent  per  annum,  an  averment 
that  no  dividend  was  made  was  insufficient.  The  undertaking 
was  collateral,  and  in  all  such  cases  a  demand  and  notice  must 
be  averred.^  On  a  general  guaranty  that  debtor  will  pay,  de- 
mand on  the  principal  is  not  necessary  to  fix  the  liability  of  the 
surety,  except  for  laches  of  the  creditor. ^  So  where  demand 
would  be  useless,  as  where  the  principal  debtor  is  insolvent.^ 

The  liability  of  a  conditional  guarantor  is  commensurate  with 
that  of  his  principal,  and  he  is  no  more  entitled  to  notice  of  a 
default,  unless  the  act  is  beyond  his  inquiry.*  Where  the 
liability  of  the  guarantor  depends  upon  an  action  against  the 
pri  icipal,  it  is  only  necessary  to  show  a  suit  against  the  prin- 
cipal.^ Where  one  guarantees  the  debt  of  another  in  consider- 
ation of  a  stay  of  proceedings  against  the  debtor,  the  promise 
of  the  creditor  is  a  condition  precedent,  and  its  performance 
must  be  alleged  in  an  action  against  the  guarantor.^  Upon  a 
guaranty  that  the  judgment  is  collectible,  proceedings  for  the 
collection  in  due  course  of  law  i?  a  condition  precedent,  and  its 
performance  must  be  shown,  or  excuse  for  its  non-performance.' 

When,  by  the  terms  of  the  guaranty,  it  is  evident  the  object 
is  to  give  a  standing  credit  to  the  principal,  to  be  used  from 
time  to  time  either  indefinitely  or  until  a  certain  period,  then 
the  liability  is  continuing;  but  when  no  time  is  fixed,  and 
nothing  in  the  instrument  indicates  a  continuance  of  the  under- 
taking, the  presumption  is  in  favor  of  a  limited  liability  as  to 
timfi,  whether  the  amount  is  limited  or  not.^  The  intention  of 
the  parties  must  be  ascertained  and  carried  into  effect,  and  in 
arriving  at  that  intent,  the  language  of  the  contract  must  be 
construed  according  to  its  plain  and  obvious  import.^  In  case 
of  ambiguity,  the  language  is  to  be  construed  most  strongly 
against  the  guarantor.^** 

§  715.  Consideration. — A  guaranty  must  be  in  writing,  but 
the   consideration  need   not   be  stated.^    And   it  is  confined  to 

J  Huik  V.  Crittenden, 2  AfoLean,  557.  '  Rmith  v.  Compton,  6  Cal.  24. 

2  c.lark    V.    Burdett,    2  Hull,   217;  '  MhIiis  v.  Hfti-ht,  14  Biirl..  7t5. 

Union  Bunk  V.  Custer's  Executors,  3  *  Christ  v  BurlingHiiip,  62  Biirl).  351 ; 

Cellist.  203.  D..s<li<'rv.  Simw.  .52N.  Y.  bOJ;  Sickle 

8  Morris  v.  Wad<worth,  11    Wend.  v.    Mursh,    44    How.    Pr.  91.     As  to 

100;  s«'«   also   Cooke  v.   Nathan,    16  liablity  of  guarantors,  Erenerullv,  see 

Barl).  H42.  Cal.  Civil  Code,  sees.  2^0  i-2«15." 

*  DouitlK.ssv.  Howland.  24  Wend.  35.  «  Christ  v.  Burlingauie,  62  Barb.  35L 

»  Morris  v.    Wadsworth,  17   Wend.  i"  Id. 

103;    but  see  Cooke  v.    Nathan,  16  "  Packard  V.  Richardson,  17  Mass. 

Barb  312:  see.  also,  Prentiss  v.  Gar-  122. 
laud,  64  Me.  155. 


§  718.  GUARANTIES.  331 

the  person  or  persons  to  whom  addressed  to  sive  a  credit  on  it. 
A  guaranty  not  under  seal  nor  expressing  consideration,  made 
contemporaneously  with  the  contract  guaranteed,  is  a  part  of 
the  contract,  and  the  expression  of  the  consideration  in  the 
guaranty  takes  the  contract  out  of  the  statute  of  frauds. ^  Thus 
a  guaranty  indorsed  on  a  charter  party  at  the  same  time  with 
its  execution,  and  the  consideration  of  one  being  in  fact  the 
consideration  of  the  other,  is  good.^  The  charter  party  re- 
ferred to  in  the  guaranty  becomes  part  thereof.  But  if  the 
guaranty  were  executed  subsequently,  it  would  fail  for  want  of 
consideration,  or  of  the  expression  of  consideration.'* 

§  716.  Guaranty  by  Factor. — A  factor  who  charges  his 
principal  with  a  guaranty  commission  upon  a  sale,  thereby 
assumes  absolutely  to  pay  the  price  when  it  falls  due,  as  if  it 
were  a  debt  of  his  own,  and  not  as  a  mere  guarantor  for 
the  purchaser;  but  he  does  not  thereliy  assume  any  additional 
responsibility  for  the  safety  of  his  remittances  of  the  pro- 
ceeds.^ 

§  717.  Joinder  of  Parties.— In  New  York  it  is  held  that 
the  principal  and  sureties  who  engage  by  different  instruments, 
although  written  upon  the  same  paper,  should  not  be  joined  as 
parties  in  one  action.^  So  a  claim  against  a  debtor  on  a  sealed 
contract,  and  one  against  a  guarantor  by  another  sealed  instru- 
ment in  the  paper,  can  not  be  united,'''  as  the  oiiginal  liability 
and  the  guaranty  are  separate  contracts.^  But  tliey  may  be 
joined  when  they  engage  by  one  instrument.^  In  Iowa,  under 
a  similar  statute,  the  contrary  is  held.^°  In  California  th«'y  may 
be  joined  whether  the  liability  is  created  by  the  same  or  separate 
instruments.^^ 

§  718.  Promise  in  Writing. — It  need  not  be  alleged  in  the 
complaint  that  the  promise  of  tlie  guarantor  was  in  writing." 
A  parol  guaranty  of  the  payment  or  collection  of  a  note,  given 
on  its  transfer  in  payment  for  property  purchased,  or  debt  due 
hy  the  guarantor,  is  not  within  the  statute  of  frauds,  but  may 
be  enforced.^^    An  agent  authorized  to  sell  a  note,  and  not  lim- 

1  Taylor  V.  WetmorP,  10  Ohio,  490.  «  Brewster  v.  Silenoe.  4   Seld.   207; 

•Jones  V.    Post,    6   Cal.    lOJ;     see  overruling  Enoa  v.  Thomas,  4  How. 

Civil  Code,  sec.  2792;  Ellenwood  v.  Pr.  48. 

Fult^  «3  Barb.  321.  »  Carman  v.  Plass,  23  N,  Y.  286. 

»  HazelUne  V.  Larco,  7Cal.  82.  '"Marvin    v.   Adanjson,     11     Iowa, 

*  Id.  871. 

*  California  Civil  Code,  sec.  2029.  ''  Code    of     Civil    Procedure,    sec. 
«  Alkn  V.  FosgHte,  11  How.  Pr.  218;  38:}. 

overruling  Enos  v.Thnmas,  4   Id.  48.      "  I  Ch.  PI.  270;   Wakefield  v.  Green- 

T  l)e   Kidder  t.    bchermerhorn,  10     hood,  29  Cal.  597. 
Barb.  t>88.  ^ Lossee  v.  Williams,  6  Lans.  228. 


S32  FORMS  OF  COMPLAINTS.  §  719. 

ited  by  instructions,  can  bind  his  principal  by  a  guaranty  that 
it  is  good  or  collectible.^ 

§  719.  On  an  Agreement  to  be  Answerable  fcr  the 
Price  of  Goods  Sold. 

Form  No.  170.     . 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of ,  18...,  at in 

consideration  that  the  plaintiff,  at  the  request  of  the  defendant* 

would  sell  to  one  A.  B.,  on  a  credit  of  montlis,  such  goods 

as  said  A.  B.  should  desire  to  buy  of  this  plaintiff,  t"ie  defend- 
ant promised  to  be  answerable  to  the  plaintiff  for  the  payment 
by  said  A.  B.  of  the  price  of  goods  so  sold  on  credit. 

II.  That  the  plaintiff  afterwards,  and  on  the  faith  of  said 
guaranty,  sold  and  delivered  to  said  A.  B.  [describe  the  goods], 

for  the  sum  of  dollars,  upon  a  credit  of  months,  of 

all  of  which  the  defendant  had  notice. 

III.  That  payment  of  the  same  was  thereafter  demanded  from 
said  A.  B.,  but  the  same  was  not  paid. 

rV.  That  notice  of  such  demand  and  non-payment  was  given  to 
the  defendant. 

V.  That  on  the day  of  ,  18...,  at ,  pay- 
ment of  the  same  was  demanded  by  the  plaintiff  from  the 
defendant. 

YI.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Demand  of  Jubgment.] 

§  720.  Form  of  Guaranty. —"  Mr.  H.,  Sir:  You  can  let 
D.  have  what  goods  he  calls  for,  and  I  will  see  that  the  same 
are  settled  for.  Yours  truly,  H.  S.  B." — is  a  continued  guar- 
anty. ^ 

Where  a  vendor  of  shares  of  fruit,  growing  in  an  orchard, 
guaranteed  the  vendee  that  he  should  collect  the  fruit  without 
disturbance  and  annoyance,  and  the  vendee  was  subsequently 
prevented  from  gathering  all  the  fruit  by  third  persons,  the 
vendee  has  a  right  of  action  against  the  vendor  on  his  guaranty, 
as  he  was  not  bound  to  take  a  portion  of  his  contract. ^     But 

>Lo8spe  V.  WilHama,  6  Lang.  228.  Wills  v.  Brown,  118  Ma!=s.  137;  Wnlker 

As  to  the  sufSiiemy  and  validity  of  v.  Hill,  119ld.24!);  Booth  v.  Eiirhmie, 

parol  promises,  as  ori-rinal  and  inde-  60  N.  Y.238;  Townsend  v.  Long,    77 

pendent  contracts,  to  exclude  the  oppr-  Pa.  St.  143.     For  action  aficainst  prin- 

ation     of    the    statute     of      frauds,  ci pal  and  sureties  on   promissory  note, 

determined  in  oases d'-pendine: on  par-  and  against  guarantors  thereon,    see 

ticular   lacts,  see  Clifford  v.  Liihring,  Promissory  Notes,  pcs^. 

69  111    401;  Bunting V.  Darb\sliire  75  SRotchkissv.    Barries.  34  Conn. 27. 

Id.  408;  Horn  v.  Bray,  55  Md.  655;  •  Dabovichv.Euieric,  12  Cal.  17L 


§  724.  GTJARANTIE9.  333 

where  the  one  person  wrote,  "Let  M.  (the  writer's  brother) 
have  what  goods  he  may  want,  on  four  mcnths,  ami  he  will  pay- 
as  usual,"  it  was  held  to  be  merely  au  expression  of  confidence, 
and  n  )t  a  guaranty.^ 

§  721.  Good  or  Collectible. — A  guaranty  to  the  effect  that 
an  obligation  is  good,  or  is  collectible,  imports  that  the  debtor 
is  solvent,  and  that  the  demand  is  collectible  by  the  usual  legal 
proceedings,  if  taken  with  reasonable  diligence.*  Such  guaranty 
is  not  discharged  by  an  omission  to  take  proceedings  upon  the 
principal  debt,  or  upon  any  collateral  security  for  its  payment, 
if  no  part  of  the  debt  could  have  been  collected  thereby. ^ 

§  722.  Liability,  Limitation  of. — Where  one  guarantees 
in  writing  the  debt  of  another  for  goods  sold  and  delivered,  by 
the  guaranty  the  defendant  becomes  the  debtor  of  plaintiff,  and 
no  limitation  could  defeat  the  action,  except  that  prescribed  for 
indebtedness  evidenced  by  the  written  guaranty.^  A  dolay  of 
three  years  in  giving  notice  that  a  guaranty  in  similar  terms  has 
become  operative,  discharges  the  gu^rantor.^ 

§  723  Notice  —  Pleaiing. — Where  the  guaranty  relates  to  a 
bill  of  goo  is,  the  guarantor  must  be  immediately  notified  of  the 
acceptance  of  the  guaranty, ^  to  be  given  in  a  reasonable  time.'' 
In  some  of  the  states,  the  guarantor  is  entitled  to  notice  that 
his  guaranty  has  been  accepted.®  On  a  guaranty  of  prompt  pay- 
ment an  allegation  that  the  guarantor  his  not  paid  is  essential. 
Merely  alleging  that  the  principal  debtor  has  not  paid  is  insuffi- 
cient.^ 

§  724.  Against  Guarantor  of  Mortgage  jto  Recover 
Deficiency  after  Foreclosure. 

Form  No.  17L 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  or  about  the  day  of  ,  18..,  the  de- 
fendants entered  into  an  agreement  with  the  plaintiff,  under  their 
their  hands  and  seals,  in  the  words  and  figures  following :  [Copy 
agreement.] 

n.  That  the  principal  sum  secured  by  the  note  and  mortgage 
referred  to  in  the  said  agreement,  became  due   and  payable  on 

*  Ei\ ton  V.  Mayo,  118  Mass.  141,  Tuokerman  v.  French,  7  Id.  11-5; 
«  Cal.  CivilCode,  sec.  2800.  Babcock  v.  Bryant,  12  Pick.  133; 
»  ChI.  Civil  Code,  sec.  2801.                   Bi-ckman  v.  Hale,  17  Johns.  134. 

«  VVhitinj^v.  Clark,  17  Cal.  407.  «  Oaks  v.  Weller,  18  Vt.  106;  Hank 

»  Whiting  V.  Stacy,  15  Gray,  270.  v.  Crittenden,   2  McLean,  657;  How 

•  Taylor  v.  Wetmore,  10  0"hio,  490.  v.  Nichols,  9  Shep.  175;  Hill  v.  Col- 
T  Mussey  v.  Rayner,   22  Pick.  223;  vin,  4  How.  (Miss.)  231. 

Norton  v.  Eastman,  4  Greenl.  521 ;        »  Roberts  v.  Treadwell,  50  Cal.  520. 


834  FORMS  OF  COMPLAINTS.  §  725. 

the   day  of   ,   18...,   and  that  on   or  abont,  etc., 

the  plaintiff  commenced  .'  n  action  in  the  superior  court  of  the 

county  of  ,  in  this  state,  for  the    foreclosure   of    the 

said  mortgage ;  and  such  proceedings  were  thereupon  had ;  that 

on  the day  of  ,  18...,    a   decree  was  made  by 

the  said  court,  for  the  foreclosure  of  the  said  mortgage  and  sale 
of  the  premises ;  and  that  if  the  proceeds  of  such  sale  should 
be  insufficient  to  pay  the  amount  reported  due  to  the  plaintiff, 
with  interest  and  costs,  the  amount  of  such  deficiency  should 
be  specified  in  the  report  of  sale  therein,  and  W.,  one  of  the 
defendants  t'lerein,  should  pay  the  same  to  the  plaintiff. 

III.  That  pursuant  to  said  decree  or  judgment-order,  the 
premises  were  duly  sold  on,  etc.,  by  the  sheriff  of,  etc.,  for  the 
price  or  sum  of,  etc.  [and  that  the  plaintiff  became  the  pur- 
chaser thereof]. 

IV.  That  upon  said  sale,  there  occurred  a  deficiency  of,  etc., 
as  appears  by  the  sheriff's  report  of  saifl  sale,  duly  filed  in  the 
office  of  the  clerk  of,  etc.,   and  that  thereupon,  to  wit,  on  the 

day  of ,  18...,  a  judgment  was  rendered  in  said 

court  against  W.  in  favor  of  the  plaintiff,  for  the  said  sum  of, 

etc.,  with  interest  from ,  18...,  of  which  no  part  has 

been  paid. 

V.  That  before  the  commencement  of  this  action,  he  de- 
manded of  the  defendants  payment  of  the  amount  of  such  de- 
ficiency, and  at  the  same  time  tendered  to  them  an  assisrnment 
of  said  judgment  against  W.,  duly  executed  by  the  plaintiff,  but 
that  the  defendants  refused  to  pay  the  same,  and  have  ever  since 
neglected  and  refused  to  pay  to  same,  although  the  plaintiff 
has  alwa3's  been,  and  still  is,  ready  and  willing  to  deliver  to  said 
defendants  an  assignment  of  said  judgment  upon  being  paid 
the  amount  due  thereon.^ 

[DkMAVD  of  JtTDGMKXT.] 

§  725.  Action  may  be  on  the  Note. — That  a  mortgage 
given  to  secure  the  payment  of  several  notes  falling  due  at  dif- 
ferent times,  provides  for  payment  at  times  or  in  modes  different 
from  the  notes,  is  no  objection  to  suit  on  the  notes  at  their  ma- 
turity.    The  mortgage  is  no  part  of  the  contract  of  indebtedness.' 

§  726.  Demand  of  Judgment. — If  the  sheriff  returns  the 
amount  due,  and  the  plaintiff  has  not  been  fully  paid  by  the 

» This  form  18  from"Abbott'8  Forms,"  >  Bobinson  v.  Smith,   14    Cal.   95. 

vol.   1,  p.  295,   and  is  sustained   by  As  to  actions  against  administnitors 

Goldsmith  v.   Brown,   35  Barb.  485,  and  executors,   see  ante,  sec.  417  et 

but  the  recovery  is  limited  by  the  sum  seq. 
actually  paid. 


§   728.  GUARANTIES.  835 

sale  of  the  mortgaged  property,  the  clerk,  without  farther  order 
of  the  court,  dockets  the  julgment  for  the  balance  due  against 
those  defendants  namad  in  the  judgment  as  personally  liable 
for  the  debt,  upon  which  docketed  judgment  execution  may 
issue.  ^ 

§  727.  Interest. — Where  the  assignee  of  a  mortgage  agreed 
to  waive  his  lien  in  favor  of  one  who  had  agreed  to  advance  money 
to  replace  buildings  destroyed  by  fire,  but  no  agreement  at  the 
time  was  made  as  to  interest,  the  guaranty  of  the  assignee  ex- 
tended no  further  than  the  contract,  and  as  this  was  silent  as  to 
the  interest,  a  higher  rate  of  interest  than  the  law  allowed  could 
not  be  collected. 2 

§  728.  Mortgage  as  Security. — This  form  of  action  would 
not  apply  under  the  statutes  of  California,  and  we  here  append 
the  following  notes  and  authorities  as  to  the  practice  in  this  state. 
It  will  be  seen  by  the  current  of  authorities  that  the  action  must 
be  upon  the  original  indebtedness,  and  that  the  morti^age  is  con- 
sidered as  a  mere  security. ^  A  mortgage  is  therefore  a  mere 
security  for  the  debt,  and  does  not  pass  the  fee,  nor  give  right  to 
entry.*  A  mortgage  in  California,  then,  does  not  confer  a  right 
to  the  possession  of  real  piO[terty,  except  as  a  result  of  foreclos- 
ure and  sale. 5  And  the  vendee  of  the  mortgagor  can  not  be 
ousted  by  a  purchaser  under  the  decree  of  foreclosure  and  sale, 
unless  such  vendee  was  made  a  party  to  the  foreclosure  suit.^  It 
shall  not  be  deemed  a  conveyance,  whatever  its  terms,  so  as  to 
enable  the  owner  of  the  mortgage  to  recover  possession  of  the 
real  property,  without  a  foreclosure  and  sale,'  thus  restricting  the 
mortgage  to  the  mere  purposes  of  security.^  The  words  "  whet- 
ever  its  terras,"  do  not  relate  to  stipulations  for  possession  or 
sale.^  A  deed  of  trust,  the  tru  tee  not  being  the  creditor,  but  a 
third  party,  given  to  secure  a  note,  and  authorizing  the  trustee  to 
sell  the  land  at  public  auction,  and  execute  to  the  purchaser  a 
good  and  sufficient  deed  of  the  same,  upon  default  in  paying  the 
note  or  interest,  as  it  falls  due,  and  out  of  the  proceeds  to  satisfy 
the  trust  generally,  and  to  render  the  surplus  to  the  grantor,  etc., 
is  not  a  mortgage  requiring  judicial  foreclosure  and  sale.^° 

>  L<^viston  V.  Swan.  83  Cal.  480.  i  Cal.  Pr.  Act,  sec.  260 ;  Code  O.  P. 

»  (io.ifrev  V.  Caldwell,  3  Cal.  101.  sec.  744. 

8  McMillan    v,    Kichards,    9     Cal.  »  McMillfln  v.  Richards,  9  Cal.  865; 

865.  Grattan  V.  Wig,'in8,  23  Id.   16;  Dut- 

*  Id. ;  Haffley  V.  Maier,  13  Cal.  13;  ton,  v.  War^cnHuer,  21  Id.  609;6kin- 
F<  g  irtv  V.  Sawyer,  17  Id.  58%  ner  v.  Buck,  29  Id.  253. 

f>  Kidd  V.  Teeple,  22  Cat.  2o5.  •  Fo^arty  v.  Sawver,  17  Cal.  539. 

•  Haffley  V.  Maier,  13  Cal.  13.  "  Koch  v.  Briggs,  14  Cal.  266. 


S36  FORMS  OF  COMPLAINTS.  §   729. 

§  729.  Necessary  Averment. — Where  the  plaintiffs  held 
cenain  security  on  real  estate  for  the  payment  of  an  indebted- 
ness of  M.  to  them,  but  gave  up  and  canceled  such  security 
upon  B.  executing  a  bond  in  their  favor,  the  condition  of  which 
was  that  li.  should  pay  to  the  plaintiffs  such  amount,  not  ex- 
ceeding four  thousand  dollars,  as  should  be  found  due  to  them 
from  M.  after  sale  of  certain  goods,  and  the  winding  up  of  the 
accounts  of  M.  with  the  plaintiffs,  the  payment  of  which  bond 
was  guaranteed  by  the  defendant  under  the  same  conditions 
expressed  therein,  it  was  held,  in  an  action  on  the  defendant's 
guaranty,  that  the  want  of  an  averment  in  the  complaint  of  the 
winding  up  of  the  accounts  of  the  plaintiffs  with  M.,  or  any 
averment  equivalent  thereto,  rendered  the  complaint  substan- 
tiall}'  defective,  and  judgment  was  given  for  the  defendant  on 
demurrer  to  tlie  complaint.^ 

§  730.  Parol  Evidence. — Parol  evidence  of  previous  agree- 
ment to  give  a  guaranty,  or  of  knowledge  of  the  relations  be- 
tween the  principal  parties,  is  inadmissible  to  make  that  a 
conliiiuing  guaranty  which  is  not  so  upon  its  face.^  So  to 
charge  one  as  guarantor  who  is  not  embraced  in  the  writing. 3 

§  731.  On  a  Guaranty  of  a  Precedent  Debt. 

Form  No.  172. 

[TiTLR.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at ,  one 

A.  B.  was  indebted  to  this  plaintiff  in  the  sun  of  dollars. 

II.  Thatonthe day  of ,  18...,  at ,tlie 

defendant  made  and  subscribed  a  memorandum  in  writing,  of 
which  the  following  is  a  copy  [copy  of  the  guaranty] ,  and  de- 
livered the  same  to  the  plaintiff,  whereby  he  promised  to  the 
plaintiff  to  answer  to  him  for  said  debt. 

III.  That  the  plaintiff  duly  performed  all  the  conditions 
thereof  on  his  part. 

IV.  That  the  defendant  has  not  paid  the  same. 

[Demand  of  Judqmknt. 

§  732.     Against  Sureties  for  Payment  of  Rent. 

Form  No.  173. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  Thatonthe day  of ,  18...,  at , 

one  W.  B.  hired  from  the  plaintiff  for  the  term  of - years 

*  >Tifklpv.  SanohoTi,  1  Cal.  200.  'First  National  Bank    y.  Bennett, 

'  B  so  1  etc.   Ulasa   Co.  v.  Moore,    83Micb.  620. 
liy  Mi.si.  4;j5. 


§  733.  GUARANTIES.  837 

the  [house  No street,  city  of ,  at  the  an- 
nual rent  of dollars,  payable  monthly]. 

II.  That  [at  the  same  time  and  place]  the  defendant  agreed, 
in  consideration  of  the  letting  of  the  said  premises  to  the  said 
W.  B.,  to  guarantee  the  payment  of  the  said  rent. 

III.  That  the  rent  aforesaid  for    the    month  ending  on  the 

day  of ,  18...,  amounting  to dollars, 

has  not  been  paid. 

^l^  'y'  the  terms  of  the  agreement  notice  is  required  to   be 

given  to  the  surety,  add:]    IV.     That  on  the    day  of 

,  18  ...,   the  plaintiff  gave  notice  to    the    defendant    of 

the  non-payment  of  the  said  rent,  and  demanded  payment 
thereof. 

V.  That  he  has  not  paid  the  same.^ 

fUKMAND  OF   JUDOMBNT.! 

§  733.  Guaranty  to  be  in  Writing  in  California. — The 

following  provisions  of  the  civil  code  of  California  cover  so 
many  disputed  questions,  that  it  is  thought  best  to  insert  them 
here.     The  code  provides : 

Sec.  2793.  Except  as  prescribed  by  the  next  section,  a  gua- 
ranty must  be  in  writing,  and  signed  by  the  guarantor;  but  the 
writing  need  not  express  a  consideration. 

Sec.  2794.  A  promise  to  answer  for  the  obligation  of  another, 
in  any  of  the  following  cases,  is  deemed  an  original  obligation 
of  the  promisor,  and  need  not  be  in  writing:  1.  Where  the 
promise  is  made  by  one  who  has  received  property  of  another 
upon  an  undertaking  to  apply  it  pursuant  to  such  promise ;  or 
by  one  who  has  received  a  discharge  from  an  obligation  in  whole 
or  in  part,  in  consideration  of  such  promise;  2.  Where  the 
creditor  parts  with  value,  or  enters  into  an  obligation,  in  con- 
sideration of  the  obligation  in  respect  to  which  the  promise  is 
made,  in  terms  or  under  circumstances  such  as  to  render  the 
party  making  the  promise  the  principal  debtor,  and  the  person 
in  whose  behalf  it  is  made  his  surety;  3.  Where  the  promise, 
heinf.  for  an  antecedent  obligation  of  another,  is  made  upon  the 
coiib'ideiation  that  the  party  receiving  it  cancels  the  antecedent 
obligation,  accepting  the  new  promise  as  a  substitute  therefor;  or 
upon  the  consideration  that  the  party  receiving  it  release  the 
property  of  another  from  a  levy,  or  his  person  from  imprisonment 
Under  an  execution  on  a  judgment  obtained  upon  the  ante- 
cedent obligation;   or    upon  a  consideration  beneficial  ta  the 

^The  second  count  is  a  sufficient  statement  of  consideration:   CaballeroT, 
Slater,  14  C.  B.  303, 
EsTBB,  Vol.  1—22 


338  FORMS  OF  COMPLAINTS.  §   734. 

promisor,  whether  moving  from  either  party  to  the  antecedent 
obligation,  or  from  another  person ;  4.  Where  a  factor  under- 
takes, for  a  commission,  to  sell  merchandise,  and  guarantee  the 
sale ;  5.  Where  the  holder  of  an  instrument  for  the  payment  of 
money,  upon  which  a  third  person  is  or  may  become  liable  to 
him,  transfers  it  in  payment  of  a  precedent  debt  of  his  own,  or 
for  s  r-ow  consideration,  and  in  connection  with  such  transfer 
^nlex*fe\liCO  a  promise  respecting  such  instrument. 

§  734.  Leases. — At  the  time  of  the  execution  of  a  leaso 
from  A.  to  B.,  C.  wrote  underneath  it:  "I  hereby  agree  to  pay 
the  rent  stipulated  above  when  it  shall  become  due,  provided 
the  said  B.  does  not  pay  the  same  " — this  must  be  considered  as 
a  part  of  the  lease  itself,  and  not  within  the  statute  of  frauds.^ 


CHAPTER  VI. 

INSURANCE. 

§  736.  On  Fire  Policy — By  the  Insured. 

Form  Ifo.  174. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendants  are  a  corporation  duly  created  by  and 
under  the  laws  of  this  state  [or  the  state  of,  etc.],  organized 
pursuant  to  an  act  of  the  legislature  [of  said  state]  entitled 
[title  of  the  act] ,  passed  [date  of  passage] ,  and  the  acts  amend- 
ing the  same. 

II.  That  the  plaintiff  [was  the  owner  of,  or]  had  an  interest 

in  a  [dwelling-house,  known   as   No.  200 street,  in  the 

city  of ],  at  the  time  of  its  insurance   and   destruction 

[or  injury]  by  fire  as  hereinafter  mentioned. 

III.  That  on  the day  of ,  18...,  at , 

it)  con.'^ideration  of  the   payment  by  the  plaintiff  to  the  defend- 

aiiC.j  \>i   the  premium  of    dollars,  the  defendants,  by 

their  agents  duly  authorized  thereto,  made  their  policy  of  in- 
surance in  writing,  a  copy  of  which  is  annexed  hereto,  and 
made  part  of  this  complaint. 

IV.  Thatonthe dayof ,  18....,  said  dwelling- 
house  and  furniture  were  totally  destroyed  [or  greatly  damaged, 
and  in  part  destroyed]  by  fire. 

V.  That  the  plaintiff's  loss  thereby  was dollars. 

»  Evoy  V.  Tewksbury,  6  Cal.  285. 


§  737.  INSURANCE.  339 

VI.  That  on  the davof ,  18....,  he  furnished 

the  defendant  with  proof  of  his  said  loss  and  interest,  and  oth- 
erwise performed  all  the  conditions  of  said  policy  on  his  part. 

VII.  That  the  defendant  has  not  paid  the  said  loss,  nor  any 

part  thereof. 

[Drmand  of  Jodqmknt.] 
[Annex  a  copy  of  polioy] 

§  736.   The  Same,  where  FlaintifT  Farchased  the  Prop- 
erty after  Insurance. 

Form  No.  175. 

[TiTLK.] 

I.   [Allege  incorporation  as  in  last  form.] 
II    That  [name  of  original  insured]  was  the  owner  of,  or  had 
an  interest  in,  etc.,  etc. 

III.  [The  same  as  in  last  form,  substituting  the  names  of  the 
original  insured,  instead  of  the  words  "  the  plaintiff."] 

IV.  That  on  the  day  of ,  18...,  at , 

with  the  consent  of  the  defendants,  in  writing,  on  said  policy, 
by  their  said  agents,  the  said  [original  insured]  sold,  assigned, 
and  conveyed  to  the  plaintff,  his  interest  in  the  said  [property] 
and  in  the  said  policy  of  insurance.     [Continue  as  in  last  form.]* 

[DkMAND   of  JtTDGMENT.] 

§  737.     The  Same— Another  Form. 

Form  No.  176. 

[TiTLK.] 

The  plaintiff  complains,  and  alleges : 

I.  That  he  was  the  owner  of  a  [match  factory,  and  the  ma- 
chinery therein],  in  the  town  of ,  county  of , 

at  the  time  of  its  insurance  and  destruction  by  fire,  as  herein- 
after mentioned. 

II.  That  on  the day  of ,  18...,  at , 

in  consideration  of  the  sum  of dollars  to  them  paid, 

the  defendants  executed  to  the  plaintiff  a  policy  of  insurance  on 
the  said  property,  a  copy  of  which  is  hereto  annexed  [marked 
* 'Exhibit  A"],  and  made  part  of  this  complaint. 

III.  That  on  the day  of ,  18....,  the  said  property 

was  totally  destroyed  by  fire. 

IV.  That  the  plaintiff's  loss  thereby  amounted  to  more  upon 
each  part  of  the  property  separately  insured,  than  the  amount 
of  such  separate  insurance. 

V.  That  on  the day  of ,  18...,  he  furnished  tne 

defendant  with  proof  of  his  said  loss  and  interest,  and  otlierwise 
duly  performed  all  the  conditions  of  the  said  policy  on  his  part. 

*  A8  to  the  form  of  avermont  of  an  sured,  see  Gransfer  y.  Howard  lot. 
a88i:raeo'8  iuterest  in  th«  subject  io-    Co.,  6  Weed.  200. 


340  FJJKMS  OP  COMPLAINTS.  §  738. 

VI.  That  the  defendant  has  not  paid  the  s^id  loss,  nor  any 

part  thereof, 

[Demand  of  Judqmknt. 
[Annex  "Exliibit  A."] 

§  738.    The  Sam3— Loss  Pa7abl3  to  Mortgages. 

Form  No.    177. 
[Title.] 

[Allege  as  in  form  iVo.  174,  substituting  the  original  insured's 

name  for  the  word  "  plaintiff,"  down  to  V.] 

V.  That  on  the day  of  ,  18  ...,  the  said  in- 
sured made,  executed,  and  delivered  to  plaintiff  his  mortgaj;e  on 

said  premises,  to  secure  the  sum  of dollars,  and  assigned 

said  policy  to  plaintiff,  as  further  security,  and  thereupon  defend- 
ant, at  the  request  of  plaintiff  and  of  the  in-u red  indorsed  on 
said  policy,  "loss,  if  any,  payable  to  [plaintiff]." 

VI.  That  said  mortgage  and  the  debt  secured  thereby  is  wholly 
unpaid  and  unsatisfied. 

[Continue  as  in  preceding  form.] 

[Dj£Ma.nd  ov  Judgment,] 

§  739.  Insurable  Interest — Averment  of. — A  legal  or 
equitable  title  is  not  necessary  to  give  an  insurable  interest  in 
property.  If  one  has  a  right  which  may  be  forced  against 
the  property,  and  which  is  so  connected  with  it  that  injury 
thereto  will  necessarily  result  in  loss  to  him,  he  has  an  insur- 
able interest.^  The  interest  of  the  insured  is  one  of  the  facts 
constituting  the  cause  of  action,  and  must  be  alleged.*  Alleg- 
ing that  the  defendants,  in  consideration,  etc.,  insured  him 
against  loss,  etc.,  on  his  three-story  and  a^tic  stone  building, 
and  a  frame  one-story  building  attached,  occupied  by  the  said, 
insured,  is  a  sufficient  ayerment  of  interest,  at  least  on  demur- 
rer. If  the  averment  is  too  general,  the  defendant's  remedy  is 
by  motion. 3  Such  interest  must  be  alleged  not  only  as  to  the 
time  the  policy  was  taken  out,  but  also  as  to  the  time  of  loss.* 
An  allegation,  however,  that  at  the  time  of  insurance,  he,  the 
plaintiff,  had  a  chattel  mortgage  on  the  property,  has  been  held 
sufficient,  as  the  interest  will  be  presumed  to  continue.^  An 
aPegation,  also,  that  the  insurance  was  effected  by  plaintiff  on 
"his"  building  is  sufficient  without  setting  out  his  title.^    And 

1  RohrDRch  V,  Germanm.  Fire  xiis.  *  Quarrier  v.  Peabody  Ins.  Co.,  10 

Co.,  62  N.  Y.  47 ;  see  also  Cal.  Civil  W.  Va.  507. 

Code,  sees.  2546,  2568.  »  Roussel  v.  St.  Nicholaa  Ins.  Co.,  41 

«2Greeul.   on  Ev.,  sees.  876,  878-  N.  Y.  Sup.  Ct.  279. 

881.  •  Fowler  v.  ».  Y.  Ind.  Ins.  Co.,  28 

«  Fowler  v.  N.  Y.  Indemnity  Insur-  Barb.  148, 
aoce  Co.,  28  Barb.  143. 


§  741.  INSURANCE.  341 

so  of  an  allegation  that  the  defendant  "  insured  plaintiff  "  on  a 
certain  amount  of  grain. ^ 

§  740.  O  ther  Ess  en  tial  Averments — Loss— Policy — Ac- 
tion by  Mortgagor. — In  an  action  to  recover  on  an  insurance 
policy,  it  is  essential  to  aver  the  loss,  and  to  show  that  it  oc- 
curred by  reason  of  a  peril  insured  against.  It  is  not  necessary 
to  show  that  the  loss  did  not  occur  through  a  peril  excepted 
from  the  policy.  Thus  it  is  not  necessary  to  state  that  the  loss 
was  not  caused  by  invasion,  riot,  lightning,  etc.  That  is  a  mat- 
ter of  defense  which  need  not  be  anticipated.*  A  partial  loss  is 
recoverable  under  an  allegation  of  total  loss.^  An  insurance 
policy  being  a  contract  of  the  insurer's  dictation,  must  be  con- 
strued m33t  strongly  against  tliem.'*  Policies  of  insurance  are 
written  contracts,  to  be  interpreted  by  the  same  rules  which  ap- 
ply to  other  contracts,  and  to  be  enforced  according  to  the  in- 
tention of  the  parties,  and  are  to  be  construed  liberally  in  favor 
of  the  assured.*  In  pleading  the  policy,  formerly  it  was  cus- 
tomary to  set  out  the  policy  and  conditi  ms  annexed  at  length. 
The  more  convenient  way  is  to  annex  a  copy  to  the  complaint, 
and  refer  to  it.^  The  payment  of  the  premium  is  a  condition 
precedent  to  the  right  to  recover  for  the  loss,  and  must  be  al- 
leged.''' The  acknowle  Igment  of  the  receipt  of  the  premium  in 
the  policy  may  be  contradicted. ^  In  an  action  by  the  mort- 
gagor on  a  policy  issued  to  him,  but  on  terms  pajj^able  to  the 
mortgagee,  the  complaint  must  aver  "  that  the  mortgage  has 
been  paid,"  or  must  join  the  mortgagee  as  a  party.^  Where 
a  policy  contained  a  provision  that  "if  the  property"  in- 
sured "shall  be  sold,"  a  delivery  of  the  said  property  to  a 
mortga'^ee,  with  the  assent  of  the  insurers,  does  not  avoid  the 
policy.^" 

§  741.  AT;etxt.— .4.n  agent,  to  effect  an  insurance,  who  re- 
tains the  policy,  has  the  authority  to  collect  it  in  case  of  loss, 

1  Rising  Sun  Ins.  Co.  v.  Slaughter,  Co.,  4i  Cal.  397;    Foot  v,  ^tna  Life 

201ik1.  6-iO,  Ins.  Co.,  61  N.  Y.  571. 

*  L"UMsbury  V.  Pro.  Ins.  Co..8C<inn.  ^  Fairbanks  v.  Bloomfit-ld,  2  Duer, 
466:  KiH-kerv.  Green,   15    East.  -inO;  349. 

Hunt  V.  Huds.  Riv.  Ins.  C".,  2  Duer,  '  B'^rg^son  v.  Builders'  Ins.  Co.,  88 

487;    Cntlin  V.  Sprinu'field   Fire  Ins.  Cal.  541. 

Co.,    1   Sumt).  4;^9:  Fcrror  v.  Home  ^  \A.;  per  contra,  see  Teutonia  Life 

Ins.  Co.,    47  Cal.  4l6;  Forbes  v.  Am.  Ins.  Co.  v.  Anderson,  77111.384;  iSanie 

etc   Ins.  Co.,  15Ur<v,  'J  9.  v.  Mueller,  Id.  22. 

*  Peoria  M»r.  &F.  Lis.  Co.  V.White-  »  Enni-»  v.  Harmony  Fire  Ins.  Co., 
hill.  25  111.466.  3B..SW.  516. 

*  Bi-vHU  V.  Peabodv  Ins.  Co.,  8  W.  '<»  W  isiiinsrton  Ins.  Co.  v.  Hayes, 
Yji  (iOi.                      '  17   Oliio  SI.48J.     Whoti    h    policy   is 

*  W'elU,  Fargo  &  Co.  v.  Pauidc  Ins.  avuided  aa  (u  removed  goud:!,  sue  Id. 


842  FORMS  OF  COMPLAINTS.  §  742. 

and  the  presumption  is  that  he  did  retain  it,  especially  as  he 
proceeded  to  collect  the  money. ^ 

§  742.  Double  Insurance.. — A  policy  forfeitable  if  the  as- 
sured shall  make  an}'  other  insurance  upon  the  property,  id  not 
forfeited  by  his  taking  a  second  but  invalid  policy  thereon.^ 

§  743,  Exceptions  in  Policy. — A  piovision  in  a  policy  of 
fire  insurance  exonerating  the  company  from  loss  by  fire  which 
should  happen  by  explosion,  must  be  taken  to  include  an  ex- 
plosion of  a  steam-engine,  insured  by  the  policy,  as  well  as  any 
external  explosion. ^ 

§  744.  Parol  Policy. — In  the  absence  of  a  statutory  prohi- 
bition, a  policy  of  insurance  may  be  made  or  changed  by  parol, 
and  the  fact  that  a  policy  is  written  does  not  prevent  its  change 
or  enlargemput  or  continuance  by  subsequent  parol  agreement.* 

§  745.  Representations. — A  representation  is  a  statement 
in  regard  to  a  material  fact  made  by  the  applicant  for  insurance 
to  the  insurer,  with  reference  to  a  proposed  contract  of  insur- 
ance. They  are  not  part  of  the  contract,  but  merely  collateral 
to  it.  It  is  sufficient  if  representations  are  substantially  true, 
while  warranties  must  be  strictly  complied  with.^ 

§  746.  Re-insurance. — There  is  no  privity  betwe3n  the  one 
originally  insured  and  the  re-insurer,  and  the  liability  over  of 
the  re-insurer  is  solely  to  the  re-insured.^  But  where  judgment 
is  rendered  against  the  original  insurer,  and  he  has  contested 
the  suit  with  the  advice  or  acquiescence  and  for  the  benefit  of 
the  re-insured,  the  latter  will  be  bound  by  the  judgment,  and 
for  the  costs  and  expenses  incurred  in  the  defense.' 

§  747.  Warranties,  Misrepresentation,  Concealment, 
etc. — Under  the  provisions  of  the  Georgia  code,  application  for 
insurance  must  not  only  be  made  in  the  utmost  goo  d  faith,  but 
the  representations  contained  therein  are  covenanted  to  be  true. 
Not  that  they  are  warranties  so  as  to  vacate  the  policy,  if  any 
of  thenti,  whether  material  or  not,  are  not  true;  but  any  variation 
in  them  from  what  is  true,  whereby  the  nature  or  extent  or 
character  of  the  risk  is  changed,  will,  if  the  policy  makes  them 
the  basis  of  the  contract  of  assurance,  avoid  the  policy,  whether 

1  De  Ro  V.  Cordes,  4  Cal.  117.  '  Biiford  v.  N.  T.  Life  Ins.  Co.,  5 

2  Thomas  V.  Builders' Mutual  Fire  Or.  334;  Higbee  v.  Guardian  etc. Ins. 
Ins.    Co.,     119  Mass.    121;    see    Cal.     Co..  66  Barb.  462. 

Civil  Code.  sees.  2641,  2642.  «  Strong  v.  Phoenix  Ins.  Co.,  62  Mo. 

'  Hiy  ward  V.  Liverpool  and  L.  Fire  289. 

and  Li'ie  I.  Co.,  5  Abb.  Pr.  (N.  S  )  1 42 ;  ^  Strong  v.  Phoenix  Ins.  Co.,  62  Mo. 

Breun«r  V.  Insurance  Co.,  51  Cal.  101.  289;  see  Cal.  Civil  Cude,  sees.  264&- 

<  \Vt-*tci  I'sterFirelns.  Co.  V.  Earle,  2649. 
83  Mich.  143. 


§  750.  INSURANCE.  343 

they  are  or  are  not  willfully  and  fraudulently  made.*  But  a 
provision  in  a  policy  of  insurance,  that  the  application  for  in- 
surance shall  be  considered  as  a  warrant,  and  that  if  the  prop- 
erty insured  is  overvalued  in  it,  the  policy  shall  be  void,  ap- 
plies only  where  the  statement  as  to  value  is  intentionally  false. 
So  also  where  the  policy  provides  that  all  fraud,  or  attempt  at 
fraud,  by  false  swearing  as  to  loss,  shall  cause  a  forfeiture  of 
all  claim  under  the  policy,  a  wrongful  or  intentional  false  swear- 
ing is  intended,  and  not  a  mere  discrepancy  or  innocent  error. 
And  whetlier  fraud  is  to  be  inferred  from  an  excessive  statement 
of  the  value  of  the  property  in  the  original  application,  or  of 
the  loss  in  the  preliminary  proofs,  is  a  question  of  fact ;  and  in 
neither  case  does  a  legal  presumption  of  fraud  arise,  nor  is  the 
burden  cast  upon  the  assured  to  establish  that  his  statement 
was  not  intentioually  false. ^ 

§  748.  Wagering  Policies. — ^Policies  executed  by  way  of 
gaming  or  wagering,  or  where  the  policy  stipulates  for  the  pay- 
ment of  the  loss  whether  the  insured  has  any  interest  or  not,  or 
that  the  policy  shall  be  received  as  proof  of  such  interest,  are 
void. 3    Insurance  of  lottery,  or  lottery  prize,  is  unauthorized.* 

§  749.    Allegation  of  Renewal. 

Form  No.  178. 

That  on  the day  of  ,  18...,  at  ,  the  de- 
fendants, by  their  agents  duly  authorized  thereto,  in  considera- 
tion of dollars  to  them  paid  by  the  plaintiff,  executed 

and  delivered  to  this  plaintiff  their  certificate  of  renewal  of  said 
policy,  of  which  the  following  is  a  copy  annexed,  as  a  part  of 
this  complaint. 

§  750.  By  Insured,  on  Agreement  to  Insure,  Policy  not 
Delivered. 

Form  No.  179, 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  [Incorporation  of  defendants,  as  in  Form  No.  174.] 

II.  That  on   and  before  the day  of ,  18..., 

the  plaintiff  applied  to  A.  B.,  who  was  then  and  there  the  duly 
authorized  agent  for  the  defendants,  for  insurance  against  loss 
or  damage  by  fire  upon  a  certain  stock  of  merchandise,  the 
property  of  said  plaintiff,  consisting  of  [describe  it],  contained 
in  a  building  occupied  by  the  plaintiff  for  [state  what] ,  in  said 

1  Southern  Life  Ins  Co.  v.  Wilkin-  *  Helbing  v.  Svea  Ins.  Co.,  64  CaL 

eon.  63   Ga.  5;i5;  see  also   Cal.   Civil  \-^ 

Code,  sec.  '2661  et  seq.;  also  sec.  2H03  "  ChI.  Civil  Code,  sec.  26'»8. 

et  seq  ;  Hiirhbep  v.  Guardian  elc.  Ins.  *  Cal.  Civil  Code,  sec.  tb'6'1, 
Co.,  0()  barb.  4tj2. 


844  FORMS  OF  COMPLAINTS.  §  750. 

town  of And  the  defendants,  by  their  said  airent,  then 

and  there  agreed  to  become  an  insurer  to  the  plaintiff  on  the 

said  stock  for  three  months  from  that  day,  for    dollars. 

at  a  premium  of  ,  and  that  the  said  defendants  would 

execute  and  deliver  to  the  plaintiff  a  policy  of  insurance  in  the 

usual  form  of  policies  issued  by  them,  for  the  sum  of    

dollars,  for  the  term  of  three  months  from  the  said  day. 

III.  That  the  plaintiff  then  and  there  paid  to  the  defendant 
Bald  premium,  to  wit,  dollars. 

IV.  That  it  was  then  and  there  agreed  between  the  plaintiff 
and  the  defendants,  that  the  said  insurance  should  be  binding 
on  them  for  the  term  of  three    months   from   the  time   of   the 

receipt  of  the  said  premium,  for  the  sum  of dollars; 

and  the  said  defendants  then  and  there,  in  consideration  of  the 
premises,  agreed  with  the  plaintiff,  to  execute  and  deliver  to 
him,  in  a  reasonable  and  convenient  time,  a  policy,  in  the  usual 
form  of  policies  issued  by  said  company,  insuring  the  said  stock 

of  goods  in  the  sum  of   dollars  against  loss  and  damage 

by  fire,  the  insurance  to  commence  at  the  time  of  the  receipt  of 
the  said  premium,  and  to  continue  for  the  said  term  of  three 
months. 

V.  That  the  defendants,  by  a  policy  of  insurance  issued  in 
their  usual  form,  among  other  things  did  promise  and  agree 
£here  set  out  the  legal  effect  of  the  contemplated  policy]. 

"VI.  That  after  the  insurance  so  made,  and  after  the  said 
promise  to  execute  and  deliver  a  policy  in  conformity  thereto, 
and  within  the  said  term  of  three   months,  for  which  the  said 

plaintiff  was  so  insured,  to  wit,  on  the  day  of , 

18...,  the  said  stock  of  merchandise  in  the  said  building  mentioned 
and  intended  to  be  so  insured,  was  totally  destroyed  by  fire. 

VII.  That  the  plaintiff  duly  fulfilled  all  the  conditions  of  said 

agreement  and  insurance  on  his  part,  and  that  more  than  

days  [or  otherwise,  as  required  by  the  policy]   before   the  com. 

inencement  of  this  action,  to  wit,  on  the day  of , 

18...,  at ,  he  gave  to  the  defendants  due  notice   and 

proof  of  the  loss  as  aforesaid,  and  demanded  payment  of  the 
said  sum  of dollars. 

VIII.  That  the  defendant  has  not  paid  the  same,   nor  any 

part  thereof. 

[Demand  or  Judgment.]* 

'  Of  the  proper  form  of  action  to  re-  ^tna  Ins.  Co.,  43  Barb.  S51.  For  % 
coTer  on  an  executory  agreement  to  form  of  complHint,  see  Kix'kwfU  v. 
issue  au  insurauce  policy,  see  Post  v.     Hartford  FireXus.  Co.,  4  Abb.  Pr.  179. 


§  753.  INSURANCE.  845 

§  751.  Action  by  Assignee.  — In  an  action  on  a  policy  of 
fire  insurance,  the  interest  of  the  assignee  must  be  stated  in 
the  comphiiut,  to  make  out  a  cause  of  action.^  Where  a  com- 
plaint by  the  assignee  of  a  fire  policy  averred  an  assurance  of 
assignor  on  his  building,  that  the  policy  was  duly  assigned  with 
the  consent  of  the  insurers,  that  the  plaintiff,  at  the  time  of  the 
loss,  was  ihe  lawful  owner  of  the  policy  and  of  the  claim  against 
the  insurers  by  reason  of  the  policy  and  loss,  and  he  made  a 
demand  of  payment  accompanied  with  the  written  as'^ent  of  the 
person  to  whom  the  original  assured  had,  after  the  loss,  assigned 
all  his  property,  it  was  held  bad  on  general  demurrer,  as  not 
showing  any  interest  of  the  plaintiff  or  his  assignor  in  the  sub- 
ject insured.^  The  assignee  of  a  policy  of  insurance  takes  it 
subject  to  all  equities. ^  An  assignment  of  a  policy  of  insurance 
upon  a  stock  of  goods,  effected  in  the  name  of  the  assisrnor, 
made  as  collateral  security  for  a  debt,  with  an  agreement  that 
in  case  of  loss  by  fire,  the  assignee  shall  collect  the  money  and 
pay  the  debt,  attaches  in  equity  as  a  lien  upon  the  amount  due 
on  the  policy  to  the  extent  of  the  debt,  as  soon  as  the  loss 
occurs.^ 

§  752.  Notice  of  Loss. —  If  the  notice  alleged  states  the 
twent^'-fourth  of  May,  the  plaintiffs  were  not  precluded  from 
showing  on  the  trial  that  the  proper  notice  was  given  on  the 
morning  of  the  twenty-first.^ 

§  753.  By  Executor  on  Life  Policy. 

Form  No.  180. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges : 

I.  [Allege  incorporation  as  in  form  No.  174.] 

II.  That  on  the day  of   ,  18..,  at  

the  defendant,  in  consideration  of  the  [annual,   semi-annual,  or 

otherwise]    payment  by   one   A.    B.   to   it,  of  dollars, 

made  their  policy  of  insurance  in  writing,  of  which  a  copy  is 
hereto  annexed,  marked  "Exhibit  A,"  and  made  part  of  this 
complaint,  and  thereby  insured  the  life  of  said  A.  B.  in  the  sum 
of dollars. 

m.  That  on  the  day  of  ,   18..,  at , 

the  said  A.  B.  died. 

'  Grnneer  v.  Howard  P.  Ins.  Co.,  5  '  Hovey  v.  American  MiitiiRl  Insur- 

"Wei  d.  202,  ance  Compuny,  2   Duer,  554.     As  to 

»  Fowlerv.  N.  T.  Indem.  Ins.  Co.,  when  the  insurer  is    exonernied   by 

22N.Y.  422.  failure  to  give  notice  of  lo-s,  [irelimi- 

8\Vinslow  V.  Na«on,  113  Mass.  414.  nary  proois,  eic,  s"—  Caiiloiiiia  CItU 

*  Kibci'd  V.  L.  F.  and  L.  lus.  Co.,  Code,  sees.  2,'o'i'i-2,\i'61, 
SO  CaL  7b. 


346  FORMS  OF  COMPLAINTS.  §  754 

IV.  That  on  the  da}' of ,  18...,  at , 

said  A.  B.  left  a  will,  by  which  the  plaintiff  was  appointed  the 
sole  executor  thereof  [or  this  plaintiff  and  C.  D.  were  appointed 
executors  thereof]. 

V.  That  on  the  day  of ,  18...,  said  will  was 

duly  proved  and  admitted  to  probate  in  the  probate  court  of  the 

couniy   of    ,  and  letters   testamentaiy  thereupon   were 

thereafter  issued  and  granted  to  the  plaintiff,  as  sole  executor 
[or  otherwise] ,  by  the  probate  court  of  said  county ;  and  this 
plaintiff  thereupon  duly  qualified  as  such  executor,  and  entered 
upon  the  discharge  of  the  duties  of  his  said  office. 

VI.  That  on  the day  of ,  18...,  the  plaintiff 

furnished  the  defendant  with  proof  of  the  death  of  the  said 
A.  B.,  and  the  said  A.  B.  and  the  plaintiff  each  duly  performed 
all  the  conditions  of  said  insurance  on  their  part. 

VII.  That  the  defendant  has  not  paid  the  same,  and  the  said 

sum   is  now  due  thereon  from  the  defendants  to  the  plaintiff,  as 

such  executor. 

[Demand  oi"  Jxtdgmbnt.] 

§  754.  Application. — A  paper  attached  to  the  application, 
with  the  heading  ' '  Questions  to  be  answered  by  the  medical 
examiner  for  the  company,"  is  not  to  be  deemed  the  applica- 
tion or  a  part  of  the  application ;  and  that  statements  made  by 
the  applicant  to  the  medical  examiner,  in  answer  to  the  ques- 
tions in  that  paper,  were  not  warranties  within  the  meaning  of 
the  policy.^  Incorrect  statements  by  the  applicant  for  a  policy 
of  hfe  insurance,  in  answer  to  a  question  by  the  examining 
phj'sician,  will  not  be  deemed  such  a  misrepresentation  as  to 
avoid  the  policy  when  it  appears  that  the  physician's  report  as 
to  the  applicant's  condition,  and  not  the  statements  of  the  ap- 
plicant himself,  was  relied  upon  by  the  company.^ 

§  755.  Conflict  of  Laws. — Where  a  policy  of  life  insur- 
ance was  made  by  a  New  York  company,  with  a  condition  that 
it  should  not  become  valid  until  countersigned  by  their  agent 
at  Chicao:o,  and  the  premium  paid,  and  the  condition  complied 
with  in  t^hicago,  it  was  held  that  the  law  of  Illinois  as  to  assign- 
ment of  the  policy  prevailed,  and  that  such  an  assignment  by  a 
married  woman  by  way  of  pledge  was  irood  in  equity. ^ 

§  756.  Construction  of  Instruments  and  Statutes. — A 
policy  of  insurance  on  the  life  of  a  husband  was   made  payable 

iHis^ee    v.  Guardian  etc.  Ins.  Co„  and  what  constitutes  a  warranty,  see 

6fi  Barb.  4«2.  shiim'  cnse. 

*ll.     A<   to  when   the  application  8p,i,,,er,,y  V.Manhattan   Life    Ins. 

wih  be  held  to  b«  a  pari  of  the  policy,  Co.,  iO  ill.  898. 


§  758.  INSURANCE.  847 

to  the  wife,  her  executors,  adminis^,^ato^s  or  assigns,  for  her 
sole  use,  and  in  case  of  her  death  before  his,  to  be  paid  to  her 
children.  A  statute  authorized  a  husband  to  effect  such  an  in- 
surance, and  protected  it  from  his  creditors.  The  wife  assigned 
the  policy  for  value,  and  died  before  her  husband.  In  an  ac- 
tion thereon,  it  was  held  that  the  policy  was  payable  to  the 
children,  not  to  the  assignee,  in  the  event  which  had  happened.^ 

§  757.  Suicide. — Life  insurance  policies  of  the  present  day 
generally  contain  a  provision,  that  in  case  the  insured  should 
"  die  by  his  own  hand  or  act,  the  policy  shall  be  void."  If 
death  occurs  in  such  a  manner,  it  is  held  that  this  proviso  would 
not  prevent  a  recovery  if  the  insured  killed  himself  in  a  fit  of 
insanity,  which  overpowered  his  consciousness,  reason,  and  will; 
that  it  is  incumbent  upon  the  plaintiff  to  show  that  the  insured 
was  insane  when  the  act  of  self-destruction  was  committed; 
proof  merely  that  he  was  insane  at  times  would  not  be  sufficient; 
that  insanity  could  not  be  inferred  from  the  fact  that  the  in- 
sured destroyed  his  own  life.^  In  an  action  on  a  policy  con- 
taining such  a  provision,  papers  offered  for  the  purpose  of  show- 
ing compliance  with  the  requirements  of  the  policy  as  to  pre- 
liminary proof  of  death  are  prima  facie  evidence  against  the 
insured  of  the  facts  recited  therein,  including  the  manner  of  the 
insured's  death,  even  though  such  recital  show  a  death  by 
suicide.  3 

§  758.    By  a  Wife,  Partner,  or  Creditor  of  the  Insured. 

Form  No.  181, 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18 ,  at , 

the   defendant,   in   consideration  of  the  [annual,  or  otherwise] 

payment  to  it  of dollars,  executed  to  the  plaintiff    a 

policy  of  insurance  on  the  life  of  [her  husbanil]  A.  B.,  of  wliich  a 
copy  is  hereto  annexed,  and  made  a  part  of  this  complaint,  and 
marked  "Exhibit A." 

II.  That  the  plaintiff  had  a  valuable  interest  in  the  life  of  the 
said  A.  B.  at  the  time  of  his  death,  and  at  the  time  of  effecting  the 
said  insurance  [state  nature  of  interest]. 

III.  That  on  the day  of 18 ,  at , 

the  said  A.  B.  died. 

»  Connectirut  Mut  Life  Ins.  Co.  v.  103;  HatTinway's  Adm'r  v.  Nat.  Life 

Burfuiihs,  34  Conn.  305.  Lis.  Co.,  48  Vt.  3:!5. 

»  Kuickerb'cker   Life   Ins,    Co.    v.  '  Wnlthfr  v.    Mutual   Ins.   Co.,  8 

Peters.   42   Md.  414;  see    Mprritt    v.  "Weal  Coaal  Hop.  368. 
Cotton  Sutes  Liie  ius.  Co.,  55  Ga. 


348  FORMS  OF  COMPLAINTS.  §   759. 

rV.  That  on  the  day  of   ,   18..,   the   plnintia 

furnished  the  defendant  with  proof  of  the  death  of  the  said  A. 
B.,  and  otherwise  performed  all  the  conditions  of  the  said  policy 
on  [her]  part. 

V.  That  the  defendant  has  not  paid  the  said  sum,  nor  any  part 

thereof. 

[Demand  of  Judgment.] 
[Annoxa  copy  of  policy,  marked  "Erhiblt  A."] 

§  759.  B/  Assignee  in  Trust  for  Wife  of  Insured. 

Form  No.  182. 

[TiTT.TC.] 

The  phvintiff  complains,  and  alleges: 

I.  [Allege  incorporation  as  in  form  No.  174.] 

II.  [Same  as  in  form  No.  180.] 

III.  That  on  the day  of  ,  18..,  the  sni'1  A.  B. 

[with  the  written  consent  of  the  defendants,  or  otlier^^ise,  ac- 
cording to  the  terms  of  the  policy],  assigned  said  policy  of  in- 
surance to  this  plaintiff,  in  trust  for  E.  B.,  his  wife.  ' 

IV.  That  up  to  the  time  of  the  death  of  A.  B.,  all  premiums 
accrued  upon  said  policy  were  fully  paid. 

V.  That  on  the day  of  ,  18..,  at ,  said 

A.  B.  died. 

VI.  That  said  A.  B.  and  the  plaintiff  each  performed  all  the 
conditions   of   said   insurance   on  their  part,  and   the    plaintiff, 

more  than  days  before  the  commencement  of  this  action, 

to  wit,  on  the  day  of  ,  18..,  at  ,  gave 

to  the  defendants  notice  and  proof  of  the  death  of  said  A.  B. 

as  aforesaid,  and  demanded  payment  of  the  said  bum  of  

dollars. 

VII.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

PDkmand  of  Judgmbnt.] 

§  760.  Assigned. — That  a  policy  was  duly  assigned  ana 
transferred,  indicates  that  the  assignment  was  by  a  sealed  in- 
strument, and  a  consideration  "  is  inferred.^  In  California  all 
written  instruments  import  a  consideration. ^ 

§  761.  Accidentallnsurance— Insured  against  Insurer. 

Form  No.  ISS. 

[TlTLR.] 

The  plaintiff  complains,  and  alleges: 

I.  That  defendant  is  a  corporation,  organized  under  the  laws 
of  the  state  of  New  York. 

ipnwlpr  V.  N.  T.  Indera.  Ins.  Co.,  23  Barb.  143;  Morange  y.  Mudge,  6 
Abb.  Pr.  218.  '  ^  ^' 

'  Civil  Cude,  sec.  1614. 


§  761.  INSURANCE.  849, 

II    That  on  the  day  of ,  18  ..,  at  the  city  of  San 

Frsincisco,  and  state  of  California,  in  consideration  of  the  pay- 
ment by  phiinliff  to  defendant  of  a  ijremium  of  dollars 

[gold  coin],  defendant  made  and  delivered  to  plaintiff  its  policy 

of  insurance,  in  writing,  upon  the  life  of   ,  of   the  city 

and  county  of  San  Francisco,  and  state  of  California,  a  copy  of 
^hich  is  annexed  to  this  complaint  and  marked  "  Exhibit  A," 
and  is  made  part  thereof ;  and  thereby  insured  the  life  of  said 

,  in  the  sum  of   dollars  [gold   coin],  against 

loss  of  life  by  personal  injuiy  caused  by  accident,  as  stated  in 
said  policy,  for  the  term  of  [six]  months  from  and  after  the 
day  of ,  18  ... 

III.  That  afterwards,  to  wit,  on  the    ....    day    of    , 

18.. ,   for  a  valuable  consideration,  the    defendant   made   and 

delivered   to   plaintiff  its  written   consent  that    said    

miglit  pursue  the  vocation  of  supercargo  on  a  sailing  vessel 
during  the  continuance  of  the  said  policy  of  insurance,  without 
prejutlice  to  said  policy,  a  copy  of  which  consent  is  hereto  an- 
nexed as  a  part  of  this  complaint,  and  marked  "  Exhibit  B," 

IV.  That  between  the  day  of    ,  18..,  and  the 

day  of  ,  18...,   and   as  plaintiff  is  infojraed   and 

believes  and  avers,  on  or  about   ,    18..,  and   while  said 

insurance  policy  and  said   written   consent  were   in  force,  said 

;.  received   a  personal    injury  which  caused    his    death 

within  three  months  thereafter,  and  that  said  injury  was  caused 
by  an  accident  within  the  meaning  of  said  policy  and  insurance, 
and  the  conditions  and  agreements   therein    contained,  to  wit, 

by  the  destruction  and  loss  of  a  certain  schooner  called  , 

while  said ,  was  on  board  of  her  as  supercargo,  and  not 

otherwise,  by  a  storm  at  sea,  or  other  perils  thereof,  while  she 
was  on  a  trading  voyage  from  the  port  of  San  Francisco,  in  said 
state,  to  the  Aleutian  Islands,  in  the  North  Pacific  ocean,  and 
back  to  said  San  Francisco,  within  the  meaning  of  said  policy  and 

written  consent,  and   between  the  said   day  of   and 

said  day  of  

V.  That  plaintiff  at  the  times  of  making,  and  delivery  of  said 
policy  and  written  consent,  as  aforesaid,  was  the  wife  of  said 
,  and  as  such  had  a  valuable  interest  in  his  life. 

VI.  That  sa,id and   this  plaintiff  each   fulfilled  all  the 

conditions  and  agreements  of  said  policy  of  insurance  on  their 
part,  and  the  plaintiff  more  than  sixty  days  before  the  com- 
mencement of  this  action,  to  wit,  on  or  about  the  day  of 

,  gave  to  the  defendants  due  notice  and  proof   of  the 


350  FORMS  OP  COMPLAINTS.  §  762. 

death    of    said ,  as    aforesaid,  and  demanded  payment 

of  the  sum  of dollars  [gold  coin],  but  no  part  thereof 

has  been  paid. 
VII.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Dkmant)  of  Judgment.] 
[Annex  copy  of  policy,  marked  "Exhibit  A."] 

§  762.    Marine  Insurance — On  an  Open  Policy. 

Foi-m  No.  184. 
[Tttt.tc.] 

The  plaintiff  complains,  and  alleges : 

I.  [Allege  incorporation  as  in  form  No.  174. 3 

II.  That  the  plaintiff  was  the  owner  of  [or  had  an  interest  in] 
the  ship  [name  of  ship],  at  the  time  of  its  insurance  and  loss,  as 
hereinafter  mentioned. 

III.  That  on  the  day  of ,  18...,  at , 

the   defendant,  in   consideration  of dollars  to  it  paid 

[or  which  the  plaintiff  then  promised  to  pay],  executed  to  him  a 
policy  of  insurance  upon  the  said  ship,  a  copy  of  which  is 
hereto  annexed  and  made  part  hereof  [or  whereby  it  promised 

to  pay  to  the  plaintiff,  within  days   after  proof  of  loss 

and  interest,  all  loss  and  damage  accruing  to  him  by  reason  of 
the  destruction  or  injury  of  the  said  ship,  during  its  next  voy- 
age from to ,  whether  by  perils  of  the  sea,  or 

by  fire,  or  by  other  cause  therein  mentioned,  not  exceeding 
dollars]. 

IV.  That  the  said  vessel,  while  proceeding  on  the  voyage  men- 
tioned in  the  said  policy,  was,  on  the  day  of  ,  18..., 

totally  lost  by  the  perils  of  the  sea  [or  otherwise]. 

V.  The  plaintiff's  loss  thereby  was dollars. 

VI.  That  on  the day  of ,  18...,  he  fur- 
nished the  defendant  with  proof  of  his  loss  and  interest,  and 
otherwise  performed  all  the  conditions  of  the  said  policy  on  his 
part. 

VII.  That  the  defendant  has  not  paid  the  said  loss,  nor  any 
part  thereof. 

[Djcmani)  of  Jxtdombnt  ]i 
[Annex  copy  of  policy.] 

§  763.  Abandonment. — It  is  not  necessary,  in  an  action  of 
covenant  on  a  policy,  that  the  declaration  s  lould  aver  that  the 
plaintiff  had  abandoned  to  the  underwriters. ^ 

*  For  a  siiflBcient  form  of  complaint,  Cranch,  100;  and  see  Columbian  Ins 
consult  Pae;e  v.  Frv,  2  Bos.  t&  Pui.  Co.  v.  Catlett,  12  VVheHt.  383;  wSnow 
2  0;  Crawford  v.  Hunter,   8  T   K.  23.  v.  anion  MuU  etc  Ins.  Co.,  119  Masa. 

*  Uod^sou  V.  Marine  lus.    Co.,   5  592. 


§  765.  INSURANT  d51 

§  7G4.  Insurance  by  Agent. — Where  the  agent  of  an  in- 
Burance  company  was  fully  authorized  to  make  insurance  of 
vessels,  and  had,  in  fact,  on  a  previous  occnsion,  insured  the 
name  vessel  for  the  same  applicant,  and  in  the  instance  under 
consideration  actually  delivered  to  him,  on  receipt  of  the  pre- 
mium note,  a  policy  duly  executed  by  the  officers  of  the  com- 
pany, filled  up  and  countersigned  by  himself  under  his  general 
authority,  and  having  every  element  of  a  perfect  and  valid  con- 
tract, the  fact  that  after  the  execution  and  delivery  of  the  policy 
the  party  insured  signed  a  memorandum  thus:  "The  insurance 
on  this  application  to  take  effect  when  approved  by  E.  P.  D., 
general  agent."  etc.,  does  not  make  the  previous  transaction  a 
nullity  until  approved.^  And  though  the  general  agent  sent 
back  the  application  directing  the  agent  who  delivered  the 
policy  to  return  to  insured  his  premium  note  and  cancel  the 
policy,  the  party  insured  was  held  entitled  to  recover  for  a  loss, 
the  agent  having  neither  returned  the  note  nor  canceled  the 
policy.* 

§  765.  Interest  of  Insured — Allegation  of. — ^The  interest 
of  the  insured  is  one  of  the  facts  constituting  the  cause  of 
action,^  and  the  averment  that  he  gave  the  defendant  due  proof 
of  loss  and  of  interest,  can  not  be  construed  as  an  averment  that 
the  plaintiff  had  an  insurable  interest.'*  It  is  the  safest  practice 
to  aver  the  interest,  when  it  does  not  distinctly  appear  in  the 
policy  as  set  forth  or  annexed.^  Interest  may  be  more  briefly 
al  eged  by  inserting  after  the  description  of  the  object  insured, 
"then  and  until  the  loss  hereinafter  mentioned,  the  property  of 
this  plaintiff."  It  need  not  be  averred  that  the  plaintiff  was 
interested  at  the  time  of  making  the  policy.  In  marine  insur- 
ance an  interest  at  the  commencement  of  the  risk  is  sufficient,* 
or  that  the  plaintiff  was  interested  in  the  vessel  at  the  time  of 
the  loss,  to  the  extent  of  the  policy.'  The  nature  or  extent  of 
the  trust  upon  which  the  interest  was  held  need  not  be  set  forth, 
they  being  matters  of  evidence. ^  Where  the  property  is  ad- 
mitted to  have  been  owned  by  the  plaintiff  when  the  policy  was 
issued,  the  burden  of  proof  is  upon  the  defendants  to  show  a 
subsequent  alienation  of  the  property.* 

» Ins.  Co.  V.  Webster,  6  Wall.  U.  S.  «  2  Grr enl.  on  Ev.  381 ;  2  Phil,  on 

129.  Ins.fi  14. 

» Id. ;  Amer.  Law  Rep.,  Julv,  1868.  '  Henshnw  v.  Mut.  Safety  Ins.  Co.,  2 

»  2  Greenl.  Ev.,  sees.  376, 378-SHl.  Blatchf.  99. 

*  Williams    v.    Ins.  Co.    of  North  »  Id. 

America,  9  How.  Pr.  865.  •  Orrell  v.  Hampden    Ins.  Co.,  18 

•  Phil,  on  Ins.  612 ;  Ellis  on  Fire  Ins.     Gray,  431. 
175. 


352  FORMS  OP  COMPLAINTS.  §   76 G. 

§  766.  Mutuality  of  Agreement. — Tn  an  action  on  an 
open  policy,  providing  tliat  the  company  shall  be  lialile  for  such 
sums  as  shall  be  specified  by  application,  and  mutually  agreed 
upon  and  indorsed  upon  the  policy,  it  is  necessary  to  aver  that 
an  amount  sought  to  be  recovered  had  been  mutually  agreed 
upon  and  indorsed  upon  the  policy.^ 

§  707.  Nature  of  the  IiOS3. — The  complaint  must  show  a 
loss  of  a  nature  intended  to  be  covered  by  the  insurance  ;^  but 
not  to  negative  possible  defenses.  And  the  loss  of  a  vessel  in- 
sured should  be  deemed  effectual  and  certain,  from  the  time 
the  vessel  was  so  injured  that  her  destruction  became  inevitable, 
and  the  cla'm  for  damages  must  be  deemed  to  have  then  attached 
althongh  she  was  kept  afloat  some  time  after  such  injury.' 

§  768.  Parties. — Those  who  had  an  interest  in  the  vessel 
insured,  at  the  time  of  the  fatal  injury,  may  recover  upon  the 
policy,  notwithstanding  the  fact  of  their  having  subsequently, 
and  before  the  sinking  of  the  vessel,  made  an  assignment  of 
their  interest  to  others,  who  are  not  parties  to  the  action.* 
Where  the  policy  is  on  account  of  whom  it  may  concern,  the 
person  to  whom  it  is  issued  may  sue,  on  behalf  of  all  the  owners, 
in  his  own  name,  as  a  trustee  of  an  express  trust. ^  If  such 
person  die,  his  personal  representative  may  sue.*  Where  sev- 
eral insurance  companies  join  in  one  policy,  in  which  the  several 
liability  of  each  is  set  forth,  they  may  be  joined  as  defendants  in 
an  action  to  recover  the  loss.' 

§  769.  Foreign  Insurance  Company's  Compliance  with 
Statutes. — In  an  action  against  a  foreign  insurance  company 
it  is  not  necessary  to  allege  or  show  that  the  laws  of  the  state 
in  which  the  contract  was  made,  authorizing  the  company  to  do 
business  therein,  had  been  complied  with.^  But  in  an  action 
by  such  company  such  compliance  must  be  shown.* 

1  Crane  v.  Evansville  Ins.  Co.,  13  Co.,93U.  S.627;  Warinejv.  Tndpmnity 
Ind.  44fi.  Ins.  Co.,  4-5  N.  Y..  606 ;  Sirohn  v.  Hnrt- 

2  Kills  on  Fire  Ins.  176;  Phil,  on  ford  Tns.  Co..  38  Wis.  648;  Fleniini,'  v. 
Ins.  618.  Ins.  Co..  12  Pa.  ^t  391  ;   Williams  v. 

»  Duncan  v.  Great  Western  Ins.  Co.,  Ocea!i  Ins.  Co.,  2  Met.  80^ ;  Knight  v. 

5  Abb.  Pr.,  N.  S.,  178;  Pardo  v.  Os-  EmokH  etc.  Ins.  Co.,  26  Ohio  St.  664. 
good.  5  Rob.  34S;  reversing  S.  C,  2  '  Sleeper  v.  Union  Ins.  Co.,  65  Me. 
Abb  Pr.,  N.  S..  365.  885. 

*  Duncan  V.  Great  Western  Ins.  Co.,        '  Bernero    v.    Ins.    Cos.,     8   West 

6  Abb.  Pr.,  N.  S.,  173.  Coast  Rep.  292;  Ins.   Co.  v.  Boy  kin, 
s  Illinois  Fire  Ins.  Co.  v.  Stanton,  57     12  Wall.  488. 

111.354;  Walsh  V.  Washington  Mar.  *  Germnnia  P.  Insurance  Co.  v.  Cur- 
Ins.  Co.,  32  N.Y.  427 ;  Pitney  v.  Glen's  ran,  8  Kan.  9 ;  Weber  v.  Union  M.  L. 
Falls  Ins.  Co.,  65  Id.  6 ;  Sturm  V.  Atlan-  Ins.  Co.,  5  Mo.  App.  51 ;  Pitzsimmons 
tic  Mut.  Ins.  Co..  63  Id.  77 ;  Protection  v.  City  F.  Ins.  Co.,  18  Wis.  234. 
Ifis.  Co.  V.  Wilson.  6  Ohio  St.  554;  'Jones  v.  Smith,  8  Gray,  500; 
Uurae  Ins.  Co.  v.  Bultiuiore  Warehouse  Washington  Co.   M.  Ins.  Co.  v.  Hajst- 


§  773.  INSURANCE.  353 

§  770,  Attaching  Policy  and  Application. — Where,  by 
the  express  terms  of  the  policy,  the  proposals,  answers,  and 
declarations  made  by  the  applicant  are  made  a  part  of  the  pol- 
icy, they  should  be  stated  in  the  complaint  in  an  action  f  )unded 
on  the  policy.^  But  such  application  need  not  be  attached 
when  n)t  made  a  condition  of  the  policy. * 

§  771.  Premium,  how  Alleged. — The  complaint  must  aver 
payment,  or  a  liability  to  pay  the  premium.^ 

§  772.  Risks. — Capture,  though  not  enumerated,  is  one  of 
the  risks  where  the  enumeration  of  risks  was  in  the  English 
form,  and  upon  a  loss  the  company  was  liable.^ 

§  773.    On  Cargo  Lost  by  Fire — Valued  Policy. 

FoT-m  No.  185. 

[TlTT.K.] 

The  plaintiff  complains,  and  alleges: 

I.  [Allege  incorporation,  as  in  form  No.  174.] 

II.  The  plaintiff  was  the  owner  of  [or  had  an  interest  in] 
ftwo  hundred  barrels  of  flour],    shipped   on   board   the   vessel 

called  the  A.  D.,  from   to  ,  at  the  time  of  the 

insurance  and  loss  hereinafter  mentioned. 

III.  That   on   the    day  of  ,  at  ,  the 

defendant,  in  consideration  of dollars  which  the  plaintiff 

then  paid,  executed  to  him  a  policy  of  insurance  upon  the 
said  goods,  a  copy  of  which  is  hereto  annexed,  marked  *'  Ex- 
hibit A,"  and  made  part  of  this  complaint  [or  whereby  it  prom- 
ises to  pay  to  the  plaintiff dollars  in  case  of  the  total 

loss,  by  fire  or  other  causes  mentioned,  of  the  said  goods,  be- 
fore their  landing  at   or,  in  case  of  partial  damage, 

such   loss  as  the  plaintiff  might  sustain  thereby,    provided  the 

same  should  not  exceed  per  centum  of  the  whole  value  of 

the  goods]. 

IV.  That  on  the day  of  ,  18...  at , 

while  proceeding  on  the  voyage  mentioned  in  the  said  policy, 
the  said  goods  were  totally  destroyed  by  fire. 

V.  That  the  plaintiff's  loss  thereby  was- dollars. 

ings,  2  Allen,   .898 ;  Washington  M.  Guardinn  Mut.  L.  Ins,  Co.  v.  Ilogan, 

Ins.  Co.   v.   Chamberlain,   16   Grray,  80  111.  35. 

V)b.  »  2  Greenl.  Ev.,  sees.  876-381 ;  Phil. 

1  Bidwell  V.  Connecticut  M.  L.  Ins.  on  In«.  Gil. 
Co.,  8  Sawver,  261  ;  Bversv.  FHrmers'  *  The    MerohantV    Ins.  Co.  v.  Ed- 
Ins.  Co.,  35  Ohio  St.  606;    Bobbint  v.  mond  etc.,  17  Gratt,  (Vh.)  138.     As  to 
L.  &  L.  &G.  Ins.  Co.,  66  N.  C.  70.  the  terms  of     an    insurance    policy, 

*  Union  Ins,  Co.  v.   McGookey,  83  whether  it  be  by  a  marine  or  fire  in- 

OhioSt.655;   Mutual  Ben,   Ins.   Co.  surance.  see  Eureka  Ins.  Co.  v.  Rob- 

V.  Cannon,  48   Ind.  264;    .Taoobs  v.  inson.  56   Ph.  St.   256;    Americaa  H. 

Nat   L.  Ins.  Co.,  1  McArtUur,  632;  Ins.  Go.  v.  Patterson,  28  Ind.  17, 
£STK£.  Vol.  1—23. 


•354  FORMS  OF  COMPLAINTS.  §   774. 

VI.  Thai  on  the daj"^  of ,  18...,  he  furnished 

the  defendant  with  proof  of  his  loss  and  interest,  and  other- 
wise performed  all  the  conditions  of  the  said  policy  on  his  part. 

VII.  That  the  defendant  has  not  paid  the  said  loss,  nor  any 

part  thereof. 

[Dkmank  of  Jubgmbnt.] 
[Annex  copy  of  policy,  marked  "Exhibit  A."]* 

§  774.  Interest,  how  Alleged. — In  a  declaration  upon  a 
ipolicy  of  insurance  on  the  cargo  of  a  canal  boat,  it  was  held  a 
sufficient  averment  of  the  plaintiff's  interest  to  allege  that  the 
insurance  was  "  for  the  account  and  benefit  of  the  plaintiff  as  a 
common  carrier,  for  hire,"  etc. ;  and  a  sufficient  averment  of 
the  liability  incurred,  to  state  that  an  amount  of  goods  exceed- 
ing that  mentioned  in  the  policy  was  intrusted  to  him  as  a 
carrier,  and  that  they  were  consumed  by  fire,  and  the  plaintiff 
thereby  became  liable  to  pay  to  the  respective  owners  a  greater 
sum  than  that  insured.  It  is  not  necessary  to  aver  actual  pay- 
ment.2  If  the  insurance  was  upon  the  goods  to  be  laden,  state 
that  they  were  laden,  and  tlieir  loss.^ 

§  775.    Valued  Policy— Allegation  of. 

Form  No.  186. 

That  on,  etc.,  at,  etc.,  in  consideration  of  the  premium   of 

dollars,  then  and   there  paid  to  them  by  the  plaintiff,  the 

defendants,  by  their  agents  duly  authorized  thereto,  made  their 
policy  of  insurance  in   writing,  of   which   a   copy   is   annexed, 

marked    "Exhibit  A,"  and   thereby  insured  for   him  

dollars   upon  the   ship  ,  then   lying   in  the   harbor  of 

,  for  a  voyage  from  to ,  against  the 

perils  of  the  seas,  and  other  perils  in  the  policy  mentioned. 

§  776.     On  Freight— Valued  Policy. 

Foitn  No.  187. 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  [Allege  incorporation  as  in  form  No.  174,] 

II.  That  he  had  an  interest  in  the  freight  to  be  earned  by  the 

ship   [Flying  Mist],  on  her  voyage  from to  , 

at  the  time  of  the  insurance  and  loss  hereinafter  mentioned, 
and  that  a  large  quantity  of  goods  was  shipped  upon  freight  in 
her  at  that  time. 

III.  That  on  the day  of ,  18...,  at , 

1  A"'  to  manner  of  pleading  a  want  Co.,  2  Sandf.  4S0;  and  spe   De  Forest 

of  seawnilhiiiess   to   an  action   on   a  v.  Fulton  Fire  Ins.  Co.,  1  Hull,  94. 
time   policy,  see  Jones  v.  Tiie  Insur-        '  Marsh  on  lus.  (3d  ed.)  214-6,  278, 

ance  Co.,  2  Wall  Jr.  C.  Ct.  278.  724. 

*  Van  2^aUa  v.  Mutual  Security  Ins. 


§  779.  INSUKANCE.  355 

the   defendant,  in   consideration  of dollars  to  it  paid, 

executed  to  the  plaintiff  a  policy  of  insarance  upon  the  said 
freight,  a  copy  of  which  is  hereto  annexed,  marked  "  Exhibit  A,'* 
and  made  part  of  this  complaint,  and  thereby  insured  for  him 

dollars  upon  certain  gools  then  laden  upon  the  ship,  for 

a  voyage  from to ,  against  the  perils  of  the  sea, 

and  otiier  perils  in  the  policy  mentioned. 

IV.  That  the  said  vessel,  while  proceeding  upon  the  voyage 
mentioned  in  the  said  policy  [or  during  said  voyage,  and  while 

lying  in  the  port  of ],  was  [or  state  said  goods,  the  freight 

•whereof  was  insured,  were],   on  the day  of , 

18  ...,  totally  lost  by  [the  perils  of  the  sea]. 

V.  That  the  plaintiff  has  not  received  any  freight  from  the  said 
vessel,  nor  did  she  earn  any  on  the  said  voyage,  by  reason  of  her 
loss  as  aforesaid. 

VI.  That  the  plaintiff's  loss  thereby  was dollars. 

VII.  That  on  the  day  of  ,  18  ...,  he  fur- 
nished the  defendant  with  proof  of  his  loss  and  interest,  and 
otherwise  performed  all  the  conditions  of  the  said  policy  on  bis 
part. 

VUI.  That  the  defendant  had  not  paid  the  said  loss. 
[Demand  of  Jddomknt.] 
[Annex  copy  of  policy,  marked  "  Exhibit  A."] 

§  777.    Avermsat  of  Loss  by  Collision. 

Form  Ko.  188. 

That  on  the day  of ,  18  ...,  while  the  said  [ship], 

with  the  said  goods  on  board,  was  proceeding  on  her  said  voyage, 
and  before  her  arrival  at  her  said  port  of  destination  in  the  said 
policy  mentioned,  another  vessel,  with  great  force  and  violence, 
was  carried  against  and  run  foul  of  the  said  [ship]  and  the  said 
[ship]  thereby  was,  with  the  said  goods,  sunk  anJ  [totally] 
lost. 

§  778.    Averment  of  Waiver  of  a  Condition. 

Form  No.  189. 

That  af  erwards,  and  on  the day  of ,  18  ...,  a1 

,  the  defendants,  by  their  agents  duly  authorized  thereto 

waived  the  condition  of  the  said  policy  by  which  [designating 
it],  and  released  and  discharged  the  plaintiffs  from  the  perform- 
ance thereof  [or,  and  consented  that  the  plaintiffs  should,  etc., 
according  to  the  facts] . 

§  779.    For  a  Partial  Loss  and  Contribntion. 

Form  No.  190. 
[TrrLi.] 
The  plaintiff  complains,  and  alleges: 


356  FOKMS  OF  COMPLAINTS.  §  780. 

I.  [Allege  incorporation  as  in  form  No.  174  ] 

II.  That  on  the  day  of ,  18...,  at ,  in 

consideration  of    the    prorainra    of  dollars,  then    and 

there  paid  by  the  plaintiff  to  the  defen  lant,  the  defendants  by 
their  agents  duly  authorized  thereto,  made  their  policy  of  in- 
surance in  writing,  of  wlii -h  a  copy  is  annexed  as  a  part  of  this 
complaint,  and  marked   "Exhibit  A,"   and  thereby  insured  for 

him dollars  upon  certain  goovls  then  and  there  laden 

upon  the  ship ,  for  a  voyage  from  to , 

against  the  perils  of  the  sea  [or  mention  the  perils  which  occa- 
sioned the  loss]. 

III.  That  said  ship  did,  on  the  day  of  ,  sail  on 

the  said  voyage,  and  while  they  proceeded  thereon  was,  by  the  per- 
ils of  the  seas,  dismasted,  and  otherwise  damaged  in  her  hull, 
rigging,  and  appurtenances;  insomuch  that  it  was  necessary  for 
the  preseivation  of  said  ship  and  her  cargo,  to  throw  over  a  part 
of  said  cargo  [or  a  pai-t  of  her  rigging  and  furniture],  and  the 
same  was  accordingly  thrown  over  for  that  purpose. 

IV.  That  in  consequence  thereof,  the  plaintiff  was  obliged  to 

expend  dollars  in   repairing  said  ship,  at ,  and  is 

also  liable  to  pay dollars  as  a  contribution  to  and  for  the 

loss  occasioned  by  said  throwing  over  of  part  of  said  cargo. 

V.  That  on  the day  of  ,  18...,  at , 

he  gave  to  the  defendant  due  notice  and  proof  of  the  loss  as 
aforesaid,  and  otherwise  duly  fulfilled  all  the  conditions  of  said 
policy  of  insurance  on  his  part. 

VI.  That  no  part  of  the  same  has  been  paid  by  the  de- 
fendant. 

[Demand  op  Jitdgmynt.] 
Annex  copy  of  policy,  marked  "  Exhibit  A.** 

§  780.  Allegation  for  a  Particular  Average  Loss. 

Fo7tn  No.  191. 

That  on  the day  of ,  while  on  the  high  seas,  the 

sea-water  broke  into  the  said  ship,  and  damaged  the  said  [flour] 
to  the  amount  of dollars. 

§  781.  Contribution. — ^The  owner  of  a  vessel  is  not  entitled 
to  contribution  on  general  average,  for  damage  sustained,  or  ex- 
pense incurred,  by  reason  of  the  perils  of  the  seas,  if  the  vessel 
was  unseaworthy  when  she  left  port,  although  from  a  latent 
defect.^ 

§  782.  Jettison. — A  vessel  fell  in  with  a  ship,  in  a  sinking 
condition.     To  save  the  lives  of  the  ship's  passengers  and  crew, 

>  Wilson  T.  Cross,  88  Cal.  60L 


§  785.  JUDGMENTS.  857 

the  master  of  the  vessel  consented  to  receive  them ;  but  as  it 
was  necessary  to  throw  overboard  part  of  bis  cargo  to  make 
room  for  them,  be  began  to  do  so  before  any  of  them  came  on 
board,  and  continued  it  while  they  were  coming  on  board,  until 
room  enough  was  made.  The  owner  of  the  vessel  sued  the  in- 
surers for  a  contribution  to  general  average,  for  the  above  jetti- 
son; it  was  held  that  he  couUl  not  recover.^ 

§  783.  Particular  Average.— Furniture  was  insured  "free 
of  particular  average  "  (which  was  taken  to  mean  "  against  total 
loss  only").  During  the  voyage,  the  vessel  was  wrecked  and 
condemned,  and  said  goods  were  transhipped,  parts  of  sets  into 
one  vessel,  and  parts  into  another.  One  of  said  vessels  was  lost, 
with  its  cargo,  and  the  other  arrived  safely ;  it  was  held  that 
the  insurers  were  liable  for  the  goods  lost.' 


CHAPTER  VII. 
ON  JUDGMENTS. 
§  784.     General  Form. 

Fottn  No.  193. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  in  the  superior 

court  of  the  county  of ,  in  this  state,  a  judgment  was 

duly  given  and  made  by  said  court  in  favor  of  this  plaintiff,  and 
against  the  defendant  herein,  in  an  action  in  said  court  last 
above-named  pending,  wherein   this  plaintiff  was  plaintiff,  and 

said  defendant  was  defendant,  for  the  sum  of dollars 

[if  the  ju'igment  provided  for  a  special  rate  of  interest,  add], 
which  said  judgment  bears  interest  from  the  date  thereof  at 
per  centum  per  annum. 

II.  That  said  judgment  remains  wholly  unpaid,^ 

[Okmand  of  Judgment.] 

§  785.  Action  Lies  on  Jad*m3nt  or  Decree. — "Where  a 
court  of  competent  jurisdiction  has  adjudicated  a  certain  sum 
to  be  due  from  one  person  to  another,  a  legal  obligation  arises 
to  pay  that  sum,   on  which  an  action  of  debt  to  enforce  the 

1  Dibnpy  v.  New  England   Mutual  m  est  ic  court,  or  on   a  jni^sTment  of  a 

Ins.  ('<).,  14  Allen  (Mmss.),  HOI,  circuit  cmiri  ot  the  Uuited  >taies,  for 

'Pierce   V.   (Jolumbia  Ins.  Co.,   14  the  juris'liction  of  such  courts  is  pre- 

AU  II  (Vlass.).  320.  sumed:  Bement  v,  Wi«ner.  1  C-de  R 

8  The   above   form  of  complaint  is  (N.  S.)  1 43;  Griswold  v.  Sedgwick,! 

Buffijieut  on  a  judgaient  of  any  do-  vVeud.  126. 


358  FORMS  OF  COMPLAINTS.  §  786. 

judgment  maybe  raaintainetl.  It  is  in  this  way  that  judgments 
of  foreign  courts  are  enforced,  and  the  rule  applies  equally  whether 
they  be  courts  of  record  or  not.^  The  same  rule  prevails  in  the 
United  States,  where  such  action  has  been  maintained  in  one  state 
on  a  judgment  rendered  by  a  justice  of  the  peace  in  another.' 
In  Virginia,  debt  was  maintained  upon  a  judgment  obtained  in 
a  court,  the  office  of  which  had  been  consumed  by  fire,  and  the 
record  of  the  judgment  wholly  destroyed. 3  An  action  lies  upon 
an  unpaid  judgment,  although  the  execution  has  not  been  re- 
turned.'* It  is  not  necessary  to  allege  an  unsuccessful  effort  to 
collect  the  judgment.*  It  was  formerly  doubted  whether  an 
action  could  be  maintained  upon  a  decree  for  the  reason  that  the 
plaintiff  had  no  legal  right  to  th6  money,  but  only  that  upon 
certain  views  peculiar  to  a  court  of  equity  the  payment  ought 
to  be  made  and  that  no  promise  could  be  implied  from  a  de- 
cree.^ It  is  now  established,  both  in  England  and  the  United 
States,  that  an  action  will  lie  on  such  a  decree.'  Such  action 
lies  although  the  judgment  could  have  an  execution  Issued 
thereon.  8 

§  786.  Against  Counties. — A  judgment  against  a  county 
under  the  act  authorizing  counties  to  sue  and  be  sued,  has  the 
effect  of  converting  a  demand  into  an  audited  claim.^  After  such 
judgment  has  been  obtained  tlie  proper  mode  of  enforcing  it  is 
by  a  writ  of  mandate.  An  ordinary  action  on  such  judgment 
does  not  lie.^** 

§  787.  Judgment,  how  Pleaded. — In  pleading  a  judgment 
or  award,  it  is  not  necessary  to  state  the  facts  conferring  juris- 
diction, but  such  judgment  or  determination  may  be  stated  to 
have  been  duly  given  or  made.^^  This  applies,  however,  to 
judgments  of  courts  of  general  jurisdiction.  In  suing  on  a 
judgment  of  a  foreign  court  of  inferior  jurisdiction,  facts  must 

1  Williams  v.  .Tones,  1 3  M.  &  W.  628.  •  Sharp  v.  Contra  Costa  Co.,  84  Cal. 

»Co,.^  V.  Drisknll.  1  lilackf.  H.  284. 

'  Newcomb  v.  Drumtuoud,  4  Leigh,  "  Alden  v.  County  of  Alameda,  48 

57.  Cal.  '270. 

*  Linton  V.  Hiirlev.  114  Mass.  76.  "  California  Code  C.  P.,   sec.  456; 
6  Ki^sr  V,  Blo.-d.  41  Oil.  3U.  N.  Y.  Code,  sec.  532;  Ohio  Code.  sec. 

•  See  Carpenter V.  Thornton,  2  Barn.  120;  Wheeler  v.  Dakin,  12  How.  Pr. 
&  Aid.  .52.  642.    It  is    snid,   in    great   measure 

■>  Henderson  V.  Henderson,  51  En^.  aAt<«r,  in  Hollister  v.  Hollister,  10  Id. 
Cora.  L.  288;  P»^ni.insi;ton  v.  trib-  532,  that  this  section  does  not  apply 
son,  16  Hi>w.  (U.S.)  76;  Freeman  oa  to  foreiijn  judgments,  and  that  a  gen- 
Judgment,  sees.  432-441.  eral  avrmpnt  of  jurisdiction  would 

8  Brooks  V.   Todd,    1  Handr,   169;  not  be  8  ifficient;  but  in  Hnlsti^ad  v. 

Herdlfv  v.  Koby,  6   Ohio,  ;i2i  :        x  B  t  h..  17  Abb.  Pr.  227,  the  contrary 

V.  Burns.  2  W.  L.  M.3S7;  Liutou  v.  is  held. 
Hurley,  114  ^LasA.  7t>. 


§  790.  JUDGMENTS.  859 

be  stated  showing  jurisdiction  of  the  person  and  the  subject- 
matter.^  In  Ohio  it  was  held  that  this  section  was  not  intended 
to  apply  to  the  judojments  of  the  superior  courts  of  general 
jurisdiitioii  of  that  State,  or  to  the  judgments  of  the  coui'ts  of 
other  States. 2  But  section  120  of  the  Ohio  code  refers  only  to 
"pleading  a  judgment  or  other  determination  of  a  court  or  officer 
of  special  jurisdiction."  In  Indiana  it  is  held  that  in  a  complaint 
on  a  judgment  of  a  justice  of  the  peace  of  another  state,  the  aver- 
ment that  the  judgment  or  decision  was  duly  given  or  made  is 
equivalent  lo  an  averment  that  the  justice  had  jurisdiction  of  the 
person  and  subject-matter.^ 

§  788  The  Same— Date  of  Entry.— Where  in  an  action 
on  a  judgment  the  postea  in  the  record  stated  that  the  judge 
presiding  at  nisi  prius  sent  up  the  record  of  proceedings  had 
before  him  on  the  nineteenth  day  of  November,  1855,  and  it  ap- 
peared that  judgment  was  signed  September  26,  1856,  it  was 
held  that  it  was  properly  averred  in  the  complaint  that  the 
judgment  was  recovered  on  the  latter  day ;  and  if  this  had  been 
an  error  it  was  amendable  at  the  trial,  and  would  be  disregarded 
on  api)eal.'* 

§  789.  The  Same — Appeal. — A  judgment  unreversed  and 
not  suspended,  may  be  enforced.*  But  it  need  not  be  averred  in 
the  complaint  that  it  was  unreversed.^ 

§  790.  The  Same— Pleading  in  Federal  Courts. — A  dec- 
laration is  sufficient  which  avers  that  "  at  a  general  term  of  the 
supreme  court  in  equity,  for  the  state  of  New  York,"  etc.  ;  being 
thus  averred  to  be  a  court  of  general  jurisdiction,  no  averment 
was  necessary  that  the  subject-matter  in  question  was  within 
its  jurisdiction,  and  the  courts  of  the  United  States  will  take 
notice  of  the  judicial  decisions  in  the  several  states,  in  the  same 
manner  as  the  courts  of  those  states.'''  Indeed  it  has  bee  )me  a 
settled  practice  in  declaring  in  an  action  upon  a  judgment, 
not  as  formerly,  to  set  out  in  the  declaration  the  wliole  record 
of  the  proce-^dings  in  the  general  suit;  but  only  to  allege,  gener- 
ally, that  the  plaintiff,  by  the  consideration  and  judgment  of  the 
court,  recovered  the  sum  mentioned  therein ;  the  original  cause 
of  judgment  having  passed  in,  rem  judicatam.^ 

»  M"cLaughlin  v.  Nichols,  13  Abb.         »  Rann  v.  Reynolds,  IR  Cal.  276. 
Pr.  244.  «  1  Ch.     Pi.     321;    Chhqueite    V. 

2  Memphis  Medical  College  V.  New-  Ortet,  60  Cal.  594;  Freeiii.  un  Judg., 
ton,  2  Handy,  1'.3.  sees.  432-484. 

3  Crake  V.  Cr«ke.  18Ind.  156;  Hal-  '  Pennington  v.  Gibson  16  How. 
Btend  V.  Back,  17  Abb.  Pr.  227.  (U.  S.)  (55. 

*  Lazier  v.  VVe»tcoiw2ii  N.  Y.  146.  «  Bidvlie  v.  Wilkins,  1  Pet.  686.       , 


360  FORMS  OF  COMPLAINTS.  §   791. 

§  791.  Judgment  by  Confession. — A  judgment  creditor, 
made  such  by  confession  of  judgment,  who  seeks  to  reach 
money  of  the  judgment  debtor  in  the  hands  of  junior  judgment 
creditors,  upon  the  ground  that  he  has  a  prior  lien  on  the 
same,  must  aver  in  his  complaint  that  at  the  time  his  judgment 
■was  rendered,  the  amount  for  which  it  was  rendered  was  unpaid 
and  due.^ 

§  792.  Defense  of  Dismissal. — Where  defendant  relies  in 
defense  upon  an  agreement  under  which  a  former  action  for  the 
same  cause  was  dismissed,  settled,  or  released,  he  must  raise 
such  defense  by  plea,  otherwise  it  will  not  be  available  as  a  bar.^ 
The  plea  of  nil  debit  is  an  insuflScient  answer  to  an  action  on  a 
judgment.^ 

§  793.  Judgments  of  Justices'  and  Probate  Courts. — It 
is  a  genv?ral  rule  that  the  law  presumes  nothing  in  favor  of  the 
jurisdiction  of  a  justice's  court.  Where  such  rule  prevails,  a 
complaint  on  a  judgment  of  a  justice  must  aflSrmatively  show 
every  fact  conferring  jurisdiction.'*  This  was  originally  the  rule 
in  California,  but  it  has  since  been  changed  by  statute.*  In 
pleading  the  judgment  of  a  probate  court,  in  California,  it  was 
formerly  necessary  to  set  forth  the  facts  which  give  jurisdiction.* 
This,  however,  has  been  changed  by  the  code,  section  456,  and 
judgments  of  that  court  are  now  pleaded  as  other  judgments  of 
courts  of  general  jurisdiction.'  • 

§  794.    On  a  Judgment  by  Leave  of  Court. 

Form  No.  193, 

[TlTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  by  leave  of  this  court  first  had  and  obtained  by  order 

of  this   court,  made  at  the  general  term  held  at  ,  and 

on ,  which  order  was  made  on  due  notice  to  the  defendant, 

the  said  plaintiff  brings  this  action. 

II.  [Allege  recovery  of  judgment  as  in  preceding  form.] 

[Demand  of  Judqmknt.] 

§  795.  Necessary  Averment. — In  New  York,  in  a  com- 
plaint on  a  judgment  rendered  in  any  court  of  that  state,  it  is 
necessary  to  aver  that  leave  to  prosecute  the  action  has  been 
obtained.®    And  if  this  averment  is  not  made,  it  does  not  state 

1  Denver  v.  Burton,  28  Cal.  549.  *  Cal.  Code  of  Civil  Procedure,  sec. 

*  Haldeman  v.  United  Slates,  91  U.    456. 

S.  (1  Otto)  584.  'Smith  v.  Andrpws,   6    Cal.  652; 

»  IndianHpolis,  B.  &  W.  Railway  Co.  Townsend  v.  Gordon,  19  Id.  189. 

V.  Eislev,  .50  Ind.  60.  ''  BcHns  v.  EmHiiuelli,  36  Cal.  117. 

*  bwHin  V.  Chase,  12  C«l.  283 ;  Row-  •  i<.  Y.  Code,  sec.  71. 
lej  v.  Howard,  23  Id.  401. 


§  798.  JUDGMENTS.  861 

a  sufficient  cause  of  action.^  The  practice  in  California  is,  how- 
ever, different,  as  their  suit  may  be  commenced  without  leave 
of  court  previously  obtained.  Yet  there  are  in  our  practice 
numerous  instances  where  leave  of  court  must  be  first  obtained ; 
such  as  suits  against  receivers,  etc. 
§  796.    The  Same,  by  an  Assignee. 

Foitu  No.  194m 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of ,  18...,  in  the  superior 

court,  in  and  for  the  county  of ,  in  this  state,  a  judg- 
ment was  duly  given  and  made  by  said  court  in  favor  of  one  C. 
D.,  and  against  E.  F.,  the  defendant  herein,  in  an  action  in 
said  court  pending,  wherein  said  C.  D.  was  plaintiff,  and  the 
said  E.  F.  was  defendant,  for  the  sum  of dollars. 

II.  That  on  the    day  of ,  18..,  at ,  the 

said  C.  D.  assigned  said  judgment  to  this  plaintiff. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Demand  of  JtTDGMKNT.] 

§  797.  Demand. — It  is  not  necessary  to  aver  any  demand  of 
payment  by  the  assignee,  or  any  refusal  to  pay  by  the  debtor.^ 

§  798.  On  a  Foreign  Judgment  of  a  Court  of  General 
Jurisdiction. 

Foitn  No.  195, 
[Title.] 

The  plaintiff  complains,  and  alleges.* 

I.  That  at  the  times  hereinafter  mentioned,  the  court  of  com- 
mon pleas,  in  and  for  the  county  of  ,  in  the  stnte  of 

[Ohio],  was  a  court  of  general  jurisdiction,  duly  created  and 
organized  by  the  laws  of  said  state. 

II.  That  on  the day  of ,  18..,  the  plaintiff  com- 
menced an  action  in  said  court  against  the  defendant  by  the 
issuance  of  summons  [or  other  process,  as  the  case  may  be], 
which  summons  was  duly  and  personally  served  upon  said  de- 
fendant [or,  in  which  action  the  defendant  appeared  in  person, 
or  by  attorney].      That  thereupon  such   proceedings  were   had 

therein  in  said   court;  that  on  the  ...  day  of  18..,  a 

judgment  for  the   sum  of dollars  was  duly  given  and 

made  by  said  court  in  favor  of  the  plaintiff,  and  against  the 
defendant. 

III.  That  no  part  thereof  has  been  paid  [except,  etc.] 

[DbMAND  of    JUDGMICNT.] 

»  Grnliam  v.  Scripture.  26  Hnw.  Pr.  501. 
I  JSioas  V.  Shauuon,  1  Hilt.  175. 


362  FORMS  OF  COMPLAINTS.  §  799. 

§  799.  Essential  Allegations.— In  plearling  the  judgment 
of  a  sister  state,  it  is  sufficient  to  allege  that  it  was  duly  recov- 
ered. Facts  conferring  jurisdiction  need  not  be  stated,  over- 
ruling dictum.^  It  is  necessary  to  allege  jurisdiction  only  in  the 
case  of  a  court  whose  title  indicates  that  it  may  be  one  of  lim- 
ited jurisdiction.  In  such  a  case,  it  is  better  to  aver  that  the 
court  had  a  general  jurisdiction.  This  was  held  necessary  in  an 
action  on  the  judgment  of  a  county  circuit  court  of  another 
state.2  In  Foot  v.  Stevens,  17  Wend.  483,  it  is  said  that  courts 
of  common  pleas,  and  county  courts  of  other  states,  are  to  be 
presumed  of  general  jurisdiction. ^  - 

§  800.  Appearance,  how  Alleged. — Alleging  that  defend- 
ant was  duly  notified,  but  not  saying  of  what;  or  that  he  had 
personal  notice  of  the  commencement  of  the  suit,  without  say- 
ing from  whom,  is  bad.'* 

§  801.  Appearance  without  Summons. — In  pleading  the 
judgment  of  a  court  of  general  jurisdiction  of  another  state,  if 
the  defendant  therein  was  served  or  appeared,  the  facts  upon 
which  jurisdiction  is  founded  need  not  be  averred.  Want  of 
jurisdiction  is  matter  of  defense. ^ 

§  802.  Exemplification  of  Judgment. — A  certificate  of 
exemplification  of  a  judgment  rendered  in  another  state,  attested 
by  the  clerk  under  the  seal  of  the  court,  and  when  the  presiding 
juilge  of  the  court  certifies  that  the  attestation  is  in  due  form  of 
law,  is  sufficient  to  sustain  an  action  in  another  state. ^  It  is 
only  necessary  that  the  certificate  should  state  the  main  facts 
which  are  made  necessary  by  the  act  of  congress  respecting  the 
authentication  of  judgments.  It  is  not  necessary  to  aver  juris- 
diction.''' A  certificate  of  the  proceeding  of  the  surrogate's 
court  of  New  York,  which  states  that  A.  W.  B.  is  surrogate  of 
the  city  and  county  of  New  York,  and  acting  clerk  of  the  surro- 
gate court;  that  he  has  compared  the  transcript  of  the  pai)ers 
with  the  original  records  in  the  matter  of  the  estate  of  W.  Y., 
and  finds  tlie  same  to  be  correct,  and  a  true  copy  of  all  the  pro- 
ceedings ;  and  that  the  certificate  is  in  due  form  of  law ;  in  tes- 
timony whereof  he  sets  his  hand  and  affixes  his  seal  of  office — is 
sufficient.  8 

iHollister  v.  Hollister,     10  Hnw.  T.  17fi:  Kundolf  v.  Thalheimer,   17 

Pr.    582;     Avres  v.  Covill,    18  Barb.  Bmb  oOti. 

2f-.0;  Halstead  v.  Black,   17   Abb.  Fr.  «  Long  v.  Lonsj.  1  Hill,  597. 

2-7.  '  Wheeler  v.  KMymoiid,  8  Cow.  .S11. 

8  MoLaughlin  v.  Nichols,   18  Abb.  •  Thompton  v.  MHtimw,  1  CmI.  ^-28, 

Tr.  -244.                  •  1  L.)w  v.  Burrows,  IJ,  Cal.  lal. 


CoaipHre  also  Frees  v.  Ford,  CN.       •id. 


§  805.  JUDGMENTS.  363 

§  803.    Force  and  Effect  of  Foreign  Judgment.— The 

judgment  in  one  state  is  to  be  received,  und  liave  full  force, 
effect,  and  virtue,  in  another  state. ^  An  action  on  a  judgment  of 
a  court  of  co  npetent  jurisdiction,  in  the  state  of  New  York,  may 
be  maintained  in  this  state,  notwithstanding  an  appeal  from 
such  judgment  has  been  taken  and  is  still  pending  in  the  court 
of  ap|)e:ils  in  tliat  state. ^ 

The  provision  of  the  United  States  constitution  giving  force 
and  effect  to  the  judgments  of  sister  states  has  no  reference  to 
the  manner  of  pleading,  but  only  to  their  effect  when  offered  in 
evidence. 3 

§  804.  Allegation  of  Jurisdiction.— In  actions  on  judg- 
ments o'ltained  in  another  state,  where  the  transcript  shows  the 
jurisdiction  of  the  court  on  its  face,  it  is  not  necessary  to  aver 
jurisdii-ti(m.^  In  Indiana,  the  record  of  the  judgment  or  a 
transcript  of  it  must  be  set  forth. ^  It  shotdd  not  be,  in  New 
York.^  If  the  judgment  was  recovered  in  Ohio  against  the 
company  by  an  erroneous  name,  but  the  suit  ui)on  the  judg- 
ment was  brought  in  Indiana  against  the  com[)any,  u&ing  its 
chartered  name  correctly,  accom;)anied  with  an  averment  that 
it  was  the  same  company,  this  mistake  is  no  ground  of  error; 
it  could  only  be  taken  advantage  of  by  a  plea  in  abatement  in 
the  suit  in  which  the  first  judgment  was  recovered.''  In  Ohio 
it  is  held  that  a  transcript  of  a  record  showing  the  recovery  of 
a  judgment  is  not  "  an  instrument  for  the  unconditional  pay- 
ment of  money  only,"  and  can  not  be  made  a  part  of  the  com- 
plaint by  reference.^  In  an  action  in  Kansas  upon  a  judgment 
recovered  in  the  court  of  common  pleas  of  Pennsylvania,  the 
petition  need  not  aver  that  that  court  had  jurisdiction,  either 
of  tlie  person  or  the  cause  of  action.* 

§  805.  On  a  Foreign  Judgment  of  an  Inferior  Tribunal. 

Foitn  No.  196. 
[TrrLF,] 

The  ]>laintiff  complains,  and  alleeres: 

I.  That  at  the  time  hereinafter  mentioned,  J.  P.  was  a  justice 

'  >filler  V.  Dnryee,  7  Cranch,  481 ;  the    transcript,    spe    Richardson    v. 

Hampton  v.  \IcC<)nneli,3  Wheat. 234;  Hickman,  22  Ind.  244. 

Mavhewv.  Thatcher,  6  Id.  129;  Ann-  *  Bradv   v.    Murphy,    19   Ind.  258; 

Btrong  V.  ('arson's  Ex'rs.  2  Dall.  302;  Adkins  v.  Hudson,  iil'  392. 

Grei^n  v.  Sarmiento.  9  W«8hin£:ton  C.  ®  Harlow  v.  Hamilton,  6  How.  Pr. 

C.  17 ;  Borden  v.  Fitch,  15  Johns.  121 ;  475. 

ShumvvMvv.  Stillman.  4  Cow.  293.  '  Lafavette  Ins.  Co.  v.  French,  18 

«  Taylor  v.  Shew.  39  Cal.  63ti.  How.  U:  S.  404. 

8  Gebhard  v.  Garni<'r,  12  Bush,  821 ;  ^  Memphis  Medical  College  v.  New- 

Knrnsv.  Kunkle,  2  Minn.  313.  ton.  2  Handy,  16:^. 

*  Low    V.   Burrows,    12     Cal.    181.  '  Butcher  v.  Bank  of  Brownsville, 

How  such  a  complaint  should    state  2  Kan.  70. 


364  FORMS  OF  COMPLAINTS.  §  806. 

of  the  peace,  in  and  for  the  town  of ,  in  the  county  of 

,   and  state   of ...,  having   authority  under   and 

by  virtue  of  an  act  of  said  state,  entitled  [title  of  act],  passed 
on  the day  of ,  18....,  to  hold  court,  and  hav- 
ing jurisdiction  as  such  over  actions  of  [state  jurisdiction  to 
include  the  cause  of  action], 

II.  That   on   the day    of ,  18...,  at , 

aforesaid,  the  plaintiff  commenced  an  action  against  the  de- 
fendant before  the  said  justice,  b}'^  filing  his  complaint,  and 
causing  summons  to  be  duly  issued  by  said  justice,  on  that  day, 
for  the  recovery  of  [state  what],  which  summons  was  duly  and 
personally  served  on  the  defendant. 

III.  That    on    the day    of.. ,  18...,    in   said 

action,  the   plaintiff  recovered  judgment,  which  was  dulv  given 

by   said  justice  against  the  defendant,    for   the  sum  of 

dollars,   to    wit, dollars    for    said    debt,    with 

dollars   for    interest    from    the    said    date,    and dollars 

costs. 

IV.  That  defendant  has  not  paid  the  same,  nor  any    part 

thereof. 

[Demand  of  Judgment.] 

§  806.  Action. — It  appears  that  the  action  of  indebitatus  os- 
sumpsit  lies  on  a  judgment  of  a  justice  of  the  peace. ^ 

§  807.  B3for3  the  Said  Ja3tice. — Tlie  appropriable  mode 
of  pleading  a  judgment  of  a  justice  of  the  peace  is  to  allege 
that  it  was  recovered  "  before  him,"  not  "  in  his  court."^ 

§  808.  Costs. — This  should  be  inserted  in  the  third  allega- 
tion, if  it  would  not  otiierwise  appear  that  the  amount  of  the 
debt  did  not  exceed  the  juris  liction.^ 

§  809.  Designation  of  Office. — It  is  necessary  in  Califor- 
nia,^ or  in  New  York,'  in  pleading  the  determination  of  an 
officer  of  special  jurisdiction,  to  designate  the  officer;  an  aver- 
ment that  such  determination  was  duly  made  is  sufficient.^  , 

§  810.  Jurisdiction  of  Person. — To  show  that  jurisdiction 
over  the  person  had  been  acquired,   it    is    necessary    to    aver, 

*  Green  v.  Fry,  1  Cranch  C.  Ct.  137.     priven,"  is  su^sjested  by  the  court  in 
SMcOnrthy  v.  Noble,  5  N.  Y.  Leg.     Crake  v.  Crake,  18  Iiid.   156.     As  to 

Obs.  380.  how  far  other  words  may  be  deemed 

»  Smith  V.  Miimford,  9  Cow.  26.  equivalent  to  "  duly  given."  compare 

*  Caliioriiia  Code  Civ.  Proc,  sec.  Willis  v.  Havemeyer,  5  Duer,  447; 
456.  Hunt  v.   Dutcher,   13  How.  Pr.  538. 

'  New  York  Code,  sec.  532,  If  the  judjjjment  was   rendered    in    a 

'Carter    v.    Kwezley,  14    Abb.    Pr.  justice's  court,  "duly"    must  he  in- 

147.     The   form    of    alleejation,    "re-  seried :  Thornxs  v.  Robinson,  3  Wend. 

covered  judgment,  which  was    duly  2t>8;  Keys  v.  tirunuis,  iiNev.  548. 


§  813.  LIABILITIES  CREATED  BY  STATUTE.  365 

either  that  the  party   appeared,  or    that   process  was   sued  out 
and  duly  served  on  him.^ 

§  8 11.  Jurisdiction  of  Justice. — The  authority  under  which 
the  judgment  was  rendered  should  be  set  forth.*  A  general 
allegation  that  the  justice  had  jurisdiction  is  not  enough.  The 
statute  giving  jurisdiction  should  be  pleaded. ^  A  ju'lgment 
against  the  plaintiff  for  costs  of  a  nonsuit  only,  is  an  exception 
to  this  rule*  But  such  facts  need  not  be  alleged,  as  residence 
of  defendant,  that  summons  was  returned,  that  return  was 
made  thereon,  that  time  of  day  was  specified  in  summons,  nor 
that  court  was  held  at  the  time  and  place  specified. ^  After 
stating  the  facts  on  which  jurisdiction  depends,  it  is  sufficient, 
without  setting  out  the  proceedings,  to  say,  "  such  proceedings 
were  had,"  that  plaintiff  recovered,  etc.* 


CHAPTEU    Vril. 

LIABILITIES  CREATED  BY  STATUTE. 

§  812.    Penalties  under  the  Statute — General  Form. 

Form  JVo.  197, 

[TlTI-B.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of  ,  18...,  at ,  the 

defendant  [here  state  acts  constituting  a  violation  of  the  stat- 
ute, either  following  the  words  of  the  statute,  or  setting  forth 
the  facts  more  specifically]  against  the  form  of  the  statute  [or 
statutes,  as  the  case  may  be],  in  such  case  made  and  provided. 
[See  sec.  813,  below.] 

II.  That  hereby  the  defendant  became  indebted  in  the  sum 
of  [amount  of  penalty]  to  [one  for  whose  use  the  action  is  given] , 
whereby  an  action  accrued  to  the  plaintiff  according  to  the  pro- 
visions of  [describing  the  statute  in  such  terms  as  the  case  may 

require]. 

[Dkmand  of  Judgmbnt.] 

§  813.  Attorney  Practicing  without  License. — An  at- 
toiney  practicing  without  a  license  may  be  punished  as  in  other 
cases  of  contempt.  The  right  to  practice  is  not  "  property,'* 
nor  in  any  sense  a  "  contract,"  withm  the   constitutional  mean- 

1  Cornell    y.  Barnes,   7    Hill,  86;  ^Turner  v.  Roby,3N.  Y.  193. 

Quivey  v.  Baker,  37  Cal.  465.  'Barnes  v.  Harris,  4  N.  Y.  375;    8 

»  Stiles  V.  Stewart,  12  Wend.  473.  Barb.  603. 

« Sheldon  v.  Hopkins,  7  Wend.  435;  •  Turoer  v.  Roby,  8  N.  Y.  193. 
Stiles  T.  Stewart,  12  Id.  473. 


866  FORMS  OF  COMPLAINTS.  §  814. 

ing  of  those  terms. ^  The  right  to  practice  is  not  a  constitu- 
tional right,  but  a  statutory  privilege.  But  the  authority  of  an 
attorney  to  appear  will  be  presumed  where  nothing  to  the  con- 
trary appears.^ 

§  814.  Copyright. — A  declaration  for  the  penalty  imposed 
for  putting  the  imprint  of  a  coi)ynght  upon  a  work  not  legally 
cop3'righted,  in  the  name  of  two  persons,  is  bad  on  general  de- 
murrer • 

§  815.  Failure  to  Pay  Assessment. — The  failure  of  one 
partner  in  a  ditch  to  pay  his  proportion  of  the  expenses  of  the 
concern  does  not  forfeit  his  right  in  the  common  property.'* 
Where  forfeiture  is  c'airaed  under  a  mining  regulation  or  cus- 
tom, this  regulation  or  custom  will  be  most  strictly  construed 
under  the  claim  of  forfeiture.^ 

§  816.  Ferries  and  Toll  Bridges. — In  an  action  brought  to 
recover  damages  by  the  owners  of  a  licensed  ferry  against  a 
party  alleged  to  have  run  a  ferry  within  the  limits  prohibited  by 
law,  it  was  held  that  the  complaint  should  have  alleged  that  de- 
fendant ran  his  ferry  for  a  fee  or  reward,  or  t!ie  promise  or 
expectation  of  it,  or  that  he  ran  it  for  other  than  his  own  personal 
use  or  that  of  his  family,  and  that  the  omission  of  these  allega- 
tions was  fatal. ^ 

§  817.  Forfeiture  under  Statute. — When  a  forfeiture  is 
purely  the  creation  of  statute,  no  other  process  or  procedure 
can  be  made  use  of  to  enforce  the  forfeiture  than  that  which 
the  statute  prescribes.'  In  an  action  to  enforce  a  penalty  or 
forfeiture  imposed  by  statute,  the  claim  is  to  be  strictly  con- 
strued.* If  there  be  any  rule  requiring  the  payment  of  a  debt, 
the  rule  can  not  apply  to  the  case  of  a  judgment  rendered  for  a 
penalty  under  the  penal  statute.^  An  action  founded  on  a  stat- 
ute to  recover  a  penalty,  where  no  penalty  is  imposed,  can  not 
l)e  sustained.^"  In  order  to  have  a  forfeiture  take  place,  there 
must  be  some  person  who  is  entitled  to  receive  the  benefit  of 
the  forfeiture.^ 

»  Cohen  v.  WriErbt,  22  Cal.  203.  »  Rend  r.  Omnibus  R.  K  Co.,  83 

•Uhvos  v.    Shatluc'k,   21   Cal.  51;  Cal.  212. 

Wilson  V.  Cleavelaiid,    80    Id.   192;  «  Askew  v.  Ebbprts,  22  Cnl.  2R3. 

Holmss  V.  Rosers.  13  Id.  191  ;  Turner  »  Chester  v.  Miller,  13  Cal.  558. 

V.  Caruthers,  17  Id.  431.  '"  Board  of   Health  v.  Pacific  Mail 

•  Fenett   v      Atwiil,     1     Blatohf.  Stpannship  Company,  1  Cal.  197. 

151.  "  Wiseman  v.  McNulty,  25  Cal.  230. 

•  Kimball  v.  Genrhart,  12  Cal.  27.         How  far  the  strict  rules  of  the  com- 
*Colman    v.    Clements,     23    Cal.      mon  law,   as  to  pleading  in  criminal 

245;  Wiseman  ▼.  McNulty,  25  Id.  cases,  are  applicable  to  informations 
230.  for   forfeitures  in  rem,  considered  io 

•  Hanson  v.  Webb,  8  Cal.  236.  The  Talrayra,  12  Wheat.  1. 


§  822.  LIABILITIES  CREATED  BY  STATUTK  86T' 

§.  818.  Forfeiture  of  Title  to  Real  Estate.— No  forfeiture 
of  real  estate  can  take  place  for  non  performance  of  conditions 
precedent  or  subsequent,  unless  there  are  two  contracting  par- 
ties who  have,  at  the  same  time,  or  successively,  an  interest  in 
the  estate  upon  which  the  condition  is  reserved.^  No  forfeiture 
accrues  to  a  title  otherwise  good,  by  failure  to  present  it  to  the 
board  of  land  commissioners. ^  The  United  States,  after  the 
treaty  of  Guadalupe  Hidalgo,  did  not  become  vested  with  any 
authority  to  prosecute  a  claim  for  forfeiture  or  escheat  that  had 
accrued  in  California  to  the  Mexican  government.^ 

§  819.  Gaming.— An  allegation  in  a  complaint  that  the  par- 
ties kept  a  saloon  for  the  purpose  of  gaming,  and  selling  liquors 
and  cigars,  does  not  raise  the  presumption  that  the  gaming  was 
necessarily  unlawful,  or  tiiat  the  saloon  was  a  common  gaming 
house,  as  the  word  might  apply  to  lawful  games,  as  billiards 
etc.-* 

§  820.  Mirks  and  Brands. — That  in  an  action  for  a  pen- 
alty for  altering  the  inspector's  marks  on  barrels  of  flour,  it 
is  necessary  to  set  out  the  marks  aud  the  manner  of  the  alter  ■ 
ation.* 

§  821.  OlHce  and  Offic3rs. — In  an  action  against  an  offlcer 
to  recover  a  penalty  imposed  by  a  general  statute,  it  is  sufficient 
to  refer  to  such  statute,  though  the  particular  duty  in  question 
was  creited  by  a  subsequent  statute.* 

§  822.  Railroad  Companies  —  Excessive  Tars. — In  an 
action  a.:?  linst  a  railroad  company  for  breach  of  duty  b}'  such 
company  in  not  conveying  a  passenger,  it  is  not  necessary  for 
plaintiff  to  allege  in  his  complaint  a  strict  legal  tender  of  his 
fare.'  It  is  sufficient  to  allege  that  plaintiff  was  ready  and  will- 
ing, and  offered  to  pay  such  sum  of  money  as  the  defendant  was 
legally  entitled  to  charge.  The  transportation  and  payment  of 
the  fares  are  contemporaneous  acts.^  In  an  action  against 
the  New  York  Central  Railroad  Co.  to  recover  a  statutory  pen- 
alty for  exacting  an  excessive  fare,  it  was  held  that  it  was  not 
necessary  that  the  complaint  should  set  out  the  various  enact- 
ments consolidating  the  several  companies  which  make  up  the 
New  York  Central  Railroad  Company  so  as  to  show  that  the 
latter  company  is  restricted  to  a  fare  of  two  ceuts  per  mile  for 

>  Wiseman    v.   Mc>'ulty,    25   Cal.        » Cloud  T.  Hewett,  3  Cranch  O.  01 

OOQ  199. 

*  Greeory  ▼.   McPherson,   13   CaL  •  .Morris  v.  Pfloplo.  3  Den.  8«1. 

662.  ^  THrbell  v.  0.  i*.  R.  R.  (Jo.,  34  CaL 

«  People  V.  rol?om,  5  Cal.  373.  61fi. 

«  Wbiple^  V.  Flower,  6  Cal.  t>82.  •  Id. 


368  FOKMS  OF  COMPLAINTS.  §  823. 

each  passenger ;  but  that  it  was  enough  to  allege  that  the  de- 
fendants had  been  duly  organized,  that  they  were  entitled  to 
demand  and  receive  of  passengers  a  certain  rate  of  fare,  and 
that  they  had  demanded  and  received  a  liigher  rate.^ 

§  823.  Telegraph  Messages. — Wliere  the  telegraph  com- 
pany fails  to  transmit  a  message,  upon  compliance  by  the  per- 
son contracting  with  it  with  the  conditions  required  by  law,  an 
action  lies  for  the  penalty.*  And  the  party  who  contracts  is  en- 
titled to  the  penalty,' 

§  824.  Theatrical  Exhibitions. — A  complaint  which  charges 
that  the  defendant  "  did  willfully  and  unlawfully,  on  the  first 
day  of  the  week,  commonly  called  Sunday,  to  wit,  on  the  Sab- 
bath day,  get  up,  and  in  getting  up  and  opening  of  a  theater," 
contains  a  sufficient  statement  of  the  facts  constituting  the 
offense  of  getting  up  a  theater  on  the  Sabbath  day.* 

§  825.  Statutory  Action — Allegations. — In  an  action  on 
a  statute,  the  party  prosecuting  must  allege  every  fact  necessary 
to  make  out  his  title  and  his  competency  to  sue.^  Thus,  where 
the  statute  giving  the  eiuse  of  action  prescribes  what  the  plaint- 
iff shall  state  in  his  complaint,  and  requires  a  reference  to  be 
made  to  the  statute,  the  requirement  must  be  complied  with  or 
the  plaintiff  can  not  recover.*  But  if  a  statute  gives  a  new  de- 
fense, or  authorizes  the  introduction  of  evidence  not  previously 
admissible,  the  defendant  may  so  shape  his  pleas  as  to  avail 
himself  of  the  benefits  of  the  new  law,  and  the  old  rules  of 
pleading  must  yield  to  the  statute.' 

§  826.  Penal  Statutes — Allegations  in  Actions  on. — In 
penal  actions  founded  on  a  statute,  a  reference  to  the  statute  is 
usually,  but  not  necessarily,  made^  for  the  purpose  of  in- 
forming the  defendant  distinctly  of  the  nature  and  character  of 
the  offense.'  And  in  cases  where  no  general  form  of  complaint 
is  given,  the  plaintiff  must  set  forth  the  particular  acts  or  omis- 
sions which  constitute  the  cause  of  action.^''  But  omitting  to 
refer  to  the  statute  is  a  defect  of  form  only.^    In  declaring  on 

>  Nf^lHs  V.  N.  Y.  Cent  R.R.  Co.,  80  151 ;  Austin  v.  Goodrich,  49   N.  Y. 

N.  Y.  505.  266. 

2  TLurn  v.  Alta  Tel.  Co.,  15  Cal.  •  Schroeppell  v.  Corning,  2  N.  Y. 

472.  132 ;  and  see  Avery  v.  Slack,  17  VN'eud. 

8  Id.  85. 

*  People  V.  M«guirfl,  28  Cal.   635 ;  ^  Cutts  v.  Hardee,  88  Ga.  850. 

for  compluint,  see  Ptople   v.  Koll,  3  '  Brown  v.  Harmon,  21    Barb.  510. 

Keves,  286.  •  Shaw  v.  Tobias,  3  Comst.  190. 

*  Fleming  v.  Bailey,  5  East,  818 ;  4  "  Slack  v.  Avery,  17Wend.  86 ;  Peo- 
Johns.  193;  Bigelow  v.  Johnson,  13Id.  pie  v.  Brooks,  4  Den.  469 ;  Bigelow  V. 
428;  P  irbanka  r.  Town  of  Antrim,  2  Johnson,  13  Johns.  428. 

N.  H.  10-3 ;  FerreU  v.  Atwill,  1  Blatch^        "  O'Maley  v.  Ueese,  6  Barb.  658. 


§  826.  LIABILITIES  CKEATED  BY  STATUTE.  869 

a  penal  statute,  it  is  sufficient  to  pursue  the  words  of  the  stat- 
ute, and  not  essential  to  conclude  "  against  the  form  of  the 
statute."^  The  declaration  must  aver  that  the  act  complained  of 
was  done  contrary  to  the  statu te.^  A  declaration  founded  ex- 
clusively upon  a  statute,  and  not  maintaina'tle  at  common  law, 
must  conclude  "against  the  form  of  the  statute. "^  A  declara- 
tion, if  foun.led  on  an  amendatory  act,  which  refers  to  and 
conttuns  a  former  one,  should  conclude  "against  the  statute," 
and  not "  statutes."^  A  declaration  on  a  penal  statute  need  not 
aver  the  uses  to  which  the  forfeiture  is  to  be  applied. ^ 

WiiCre  a  number  of  penalties  are  incurred  in  one  act,  they 
may  all  be  included  in  one  count.  In  an  action  against  an  offi- 
cer to  recover  a  penalty  imposed  by  a  general  statute  for  any 
neglect  or  refusal  to  perform  a  duty,  it  is  enough  to  refer  to 
such  statute,  though  the  particular  duty  in  question  was  created 
by  a  subsequent  statute.^ 

Where  a  penalty  is  given  by  statute  and  no  remedy  is  pro- 
vi  led,  debt  will  lie.'  And  this  although  it  is  uncertain.^  In  an 
action  for  debt,  brought  to  recover  several  penalties  (under  sec- 
tion 1  of  the  act  of  1790),  against  the  master  of  a  vessel  for 
shipping  seamen  without  articles,  a  sing  e  count  for  all  the 
penalties  is  sufficient.^  So  also  if  an  agreement  contain  a  pen- 
alty, the  plaintiff  may  bring  debt  for  the  same  and  for  no/  more, 
or  covenant,  and  recover  more  or  less  damages  than  the  penalty  ;^'^ 
and  for  several  penalties  incurred  in  one  act,  plaintiffs  may  de- 
clare generally  in  one  count. '^  But  only  one  penalty  can  be  en- 
forced for  the  same  act.^^  Thus,  under  an  ordinance  forbidding 
both  the  sale  of  a  thing  and  its  exposure  to  sale,  a  single  act  of  sell- 
ing can  not  be  separated  so  as  to  impose  therefor  two  penalties. 
In  case  of  an  actual  sale,  the  er^posure  to  sale  is  merged  in  the 
fc^ale.^3    Where  two  or  more  coucur  in  the  act  of  aiding,  and  but 

*  People  V.  Bartow,  6  Cow.  290;  company  for  not  ringing  bell  on  ap- 
I, pe  V.  (Jim k,  2  East,  383.  preaching  a  crossing:  6ee   Wilson  v.. 

«  Parker  v.  Ha  worth,    4  McLean,  Koch.  &  Syr.  R.  R.  Co.,  16  Barb.  167. 

373.  '  Jacob  v.   United  States,  1  Brock. 

«  Ch.  PI.  246,  405 :  Sears  v.  United  Marsh.  520. 

States,!  Gall.  257;  Smith  v.  United  *  Corporation    of    Washington.   "Vt 

StHtes,  Id.  261  ;  I  Sauiid.  135,  n.;  .Jones  Eaton,  4  Craiich  C.C.  352. 

V.  Vanzundt,  2  McLean,  611.     That  it  *  People  v.  M'Fadden,13  Wend.  398  ; 

is  essential,  see  Sears  v.  United  States,  Wolverton  v.  Lacy,  8  Law  R.,  N»  Sk» 

1  GhII.  257.  672. 

*  Falconer  v.  Campbell,  2  McLean,  ^^  Martin  v.  Tavlor.l  Wash.  0.  C.  1.. 
19.5.  "  People  v.    M'Fadden,  13   Wendw 

*  Sears  v.  United  Statps,  1  Gall.  257.  396. 

«  Morris  v.  People.  3  Den.  381.     For         J^Drigkin  y.  Parish,  3  McLean,  63L 
exacting  excessive  fare  on  railroad:         '^  t^itv  of  Brooklyn  v.   Toynbee,  81 
Nelli*  V.   N.  Y.  C.  R.  R.  Co.,  30  N.     Barb.282. 
Y.  605.    Complaint  against    railway 
KSTEE,  Vol.  1—24. 


870  FOEMS  OF  COMPLAINTa  §  827. 

one  penalty  attaches,  they  may  be  sued  together.^  In  an  action 
for  a  statute  penalty,  intent  to  violate  the  law  must  be  shown ; 
but  a  neglect  may  be  so  gross  as  to  amount  to  a  criminal  intent.^ 
The  repeal  of  a  law  imposing  a  penalty  determines  the  action.' 

§  827.  Provisos  and  Exceptions. — It  is  a  general  rule, 
that  in  pleading  under  a  statute,  it  is  sufficient  to  use  the  lan- 
guage of  the  statute,  and  though  tliere  are  exceptions  requiring 
specific  facts  to  be  stated  where  general  language  is  used  in  the 
statute,  yet  it  is  not  necessary  in  a  civil  proceeding  to  ad<l  to  the 
language  of  the  statute  other  general  language,  which  does  not 
make  the  pleading  any  more  specific,  because  such  other  language 
-was  technically  required  in  a  common-law  indictment.'*  But  when 
a  pleading  is  filed  under  a  statute  ^here  there  is  an  exception  in 
the  enacting  clause,  it  must  negative  the  excdetion;  but  where 
where  there  is  no  exception  to  the  enacting  clause,  but  an  exception 
in  the  proviso  thereto,  or  in  a  subsequent  section  of  the  act,  it  is 
matter  of  defense  and  must  be  shown  by  the  defendant.^  A 
public  statute  need  not  be  recited  or  referred  to  in  pleading,  and 
all  that  seems  material  is  that  enough  be  stated  to  bring  the  case 
witliin  the  statute.^ 

§  828.  Statutes,  how  Proved. — As  to  whether  an  act  is 
passed  by  the  requisite  vote,  the  printed  statutes  are  presumptively 
coriect,  and  the  original  on  file  conclusive.''' 

§  829.  Venue  in  California. — Actions  for  the  recovery  of  a 
penalty  or  forfeiture  imposed  by  statute,  shall  be  tried  in  the 
county  where  the  cause,  or  some  part  thereof,  arose,  subject  to 
the  power  of  the  court  to  cliauge  the  place  of  trial. ^ 

§  830.    For  Selling  Liquor  without  a  License. 

F»rm  No.  198. 
[TiTT.-K.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18  ...,  at , 

the  defendant  sold  to  one  A.  B.  [or  to  divers  persons]    strong 

•Pnrtridgnv.  Navlor,  Cro.Eliz.  480;  Hanks,  86  111.  281 :  Lvnch  v.  People, 

F.   Mi>i>re,  453;  Kei  V.  Clark,  Cowp.  16  Mich.  472;  FaiibHUt  v,  Hulett,  10 

610;  Barnard  V.  Goatling,  2  Enst,  669;  Minn.  30;  Clough  v.  >U(  plierd,  31  N. 

■Warren  V.  Doolittle,  5  Cow.  678 ;  com-  H.  490;  McGlone  v.  Prosper,  21  Wis. 

pare  Marsh  v.  Shute,  1  Den.  280;  In-  273;  but  see  Farwell  v.  tjmilh,  16  N. 

gersoU  V.  Skinner,  Id.  640;  Mavorof  J.  L.  (1  Harr.)138. 

i^.  y.  V.  Ordrenan,  12  Johns.  122;  see  •  McHarg  v.  Eastman,  7  Robt.  137; 

also  Palmer  v.Conly,  4  Don.  S74.  S.  C,    35   How.    Pr.    205;   Bretz    v. 

*  Sturges  V.  Maitland,  Anth.  N.  P.  Mayor,  35  Id.  130;  S.  C.  4  Abb.  Pr. 
208.  (N.  S.)  258;  reversing  3  Abb.  Pr.  (N. 

•  People  ex  rel.  Cook  v.  Board  of  S.)  478. 

Police,  40  Barb.  626;  16  Abb.  Pr.  473.  '  People  ex  rel.  v.  Commissioners  of 

♦.larvis  V.Hamilton,  16  Wis.  674.  Hii^hways,   54  N-  Y.   276;  People  v. 

6  Washburn  V.  Franklin,   28   Barb.  Devlin,  33  Id.  269. 

27;    Urtiut    Western  B.    K.    Co.    v.  »  Calit'uraia  Code  C.  P.,  sec  398. 


§  8ol.  LIABILITIES  CREATED  BY  STATUTE.  371 

liqii'irs  [or  spirituous  liquors,  or  wines],  in  quantities  less  than 
by  tlie  bottle  [or  otherwise,  accordii)g  to  tlie  terms  of  tlie  ordi- 
nance or  statute]. 

II.  That  the  defendant  had  not  then  a  license  to  sell  liquors, 
as  required  by  the  act  euiitled  "  An  act,"  etc.  [giving  title  of  act 
in  lull],  pa-^sed  on  the day  of 18.. 

III.  That  thereby  the  defendant  became,  and  is  indebted  to 

the  |»laintiff  in  the  sum  and  penalty  of  dollars,  for  said 

act  of  selling  [or,  each  and  every  of  said  acts  of  selling],  whereby 
this  action  has  accrued  to  the  plaintiff,  according  to  the  provis- 
ions of  said  act,  for  the  snid  sum  of dollars  [or  if  more 

than  one  penalty  is  claimed,  for  the  aggregate  amount  or  sum 

of  dollars]. 

[Dkmakd  of  Judgment.]* 

§  831.    Against  a  Witness,  for  Disobeying  Subpoena. 

Form  No.  199. 

[TiTLS.] 

I.  That   on   the   day  of    ,    18..,   at  , 

the  plaintiff  caused  the  defendant  to  be  duly  served  with  a  sub- 
poena commanding  him  to  attend  as  a  witness  in court, 

in   and   for  the  county  of ,  in  this  state,  on  the 

day  of ,  18..,  there  to  give  testimony  on  behalf  of  the 

plaintiff  in  an  action  in  said  court  pending,  wherein  this  plaintiff 
was  the  plaintiff,  and  one  C.  D.  was  defendant  [or  otherwise 
designate  the  proceedings]. 

II.  That  at  the  same  time  the  plaintiff  caused  dol- 
lars, the  lawful  fees  of  the  said  witness,  to  be  paid  [or  tendered] 
to  him. 

III.  That  defendant  failed  to  attend  as  commanded,  whereby 
the  defendant  became  indebted  to  the  plaintiff  in  the  amount  of 
dollars,  according  to  the  provisions  of  the  statute  [de- 
scribe the  statute], 

IV.  That  by  reason  of  the  premises,  the  defendant  forfeited  to 
the  plaintiff  the  sum  of  dollars. 

[If  special  damages  are  claimed,  add:]  V.  And  for  a  second 
cause  of  action,  the  plaintiff  alleges  that  because  of  the  said 
failure  of  the  said  defendant  to  attend  said  trial  as  such  witness 
as  aforesaid,  the  plaintiff,  when  said  action  was  called  for  trial, 
was  compelled,  for  want  of  the  testimony  of  said  defendant, 
without  whose  testimony  he  could  not  safely  proceed  to  the  trial 
of  said  action,  to  move  the  said  court  lo  continue  the  said  action ; 

1  For  another  form,  see  People  v.    Cole  v.  JesBup,  10  N.  Y.  96;  10  How. 
Bennett.  6  Abb.  Pr.  384.     To  follow    Pr.  615. 
the  words  of  the  act  is  sufficient :  Sue 


372  FORMS  OF  COMPLAINTS.  .    §  832. 

and  the  said  court  did  continue  the  sime,  and  the  plaintiff  was 

compelled  to  pay  on  said  conliiiuance,  as  c  sts  thereof, 

dollars,  which  sum  he  was  so  compelled  to  pay  by  reason  of  the 
said  failnre  of  the  said  defendant  to  attend  as  such  witness  as 
aforesaid,  to  the  damage  of  the  plaintiff  in  the  said  sum  of 
dollars. 

[DkMAND  op  JxTDaMKNT.] 

§  832.  Witaess  Rsfusing  to  Aaswar. — An  action  lies  at 
common  law  against  a  witness  refusing  to  answer  or  attend 
under  a  subpoena.^  The  complaint  must  aver  that  the  witness 
fees  were  paid  or  tendered  to  him.^  It  would  seem  that  a  gen- 
eral allegation  that  he  was  legally  subpoenaed  is  insufficipnt.^ 

§  833.  For  Violation  of  Ordinaaca  of  Board  of  Super- 
visors. 

Form  No.  SOO, 

[TiTLW.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  or  about  the  day  of ,  18...,  the 

board  of  supervisors  of  the  county  of ,  in  pursuance  of 

the  power  in  them  vested  by  law,  passed  a  law  entitled  "  An 
order,  regulation  or  ordinance,  etc.  [giving  title  of  the  same] 
a  copy  of  which  is  annexed  as  a  part  of  this  complaint. 

II.  That  since  the  passing  thereof,  to  wit,  on  the day 

of  ,  18..,  the  defendant  [here  state  fully  wherein  the 

defendant  has  disobeyed  the  order] ,  contrary  to  the  provisions 
of  the  said  ordinance  above  mentioned. 

III.  That  by  reason  of  the  premises,  the  defendant  forfeited 
to  the  plaintiff  the  sum  of dollars. 

[Demand  of  Judgment.]* 

§  834.  Essential  Allegations. — In  general,  the  by-laws  of 
all  corporate  bodies,  including  municipal  corporations,  must  be 
set  forth  in  pleading,  when  they  are  sought  to  be  enforced  by 
an  action,  or  set  up  as  a  protection.*  In  Indiana  a  copy  of  the 
by-law  or  ordinance  should  be  made  a  part  of  the  complaint.^ 
But  the  authority  to  enact  may  be  averred  in  general  terms.' 

*  King  V,  The  Inhabitants  etc.,  •  "Wile,  on  Mun,  Corp.,  pi  1,  sec. 
Douffl.  561;  Gorham  v.  Thonapaon,  480;  Harker  v.  Mayor  etc.  of  N.  Y., 
Ptake,  60;  Warner  v.  Lucas,  10  Ohio,  17  Wend.  199;  People  v.  Mayor  etc. 
886.  of  N.  Y.,  7  flow.  Pr.  81. 

'  McKeon  v.  Lane,  1  Hall,  866.  *  Green   v.  Indianapolis,    22   Ind. 

» Id.  192. 

*  This  is  suhstantially  the  form  of  '  Stuyvesant  v.  Mayor  of  N.  T.,  7 
the  complaint  io  Smith  v.  Levinus,  8  Cow.  603. 

N.Y.472, 


§  837.    MONEY  HAD  AND  RECEIVED  TO  PLAINTIFFS  USE.    373 


CHAPTER  IX. 

POP  MONEY H\D  AND  KEOEIVED  TO  PLAINTIFF'S  USB. 
§  835.     Common  Form. 

Form  No.  XOL 
[Title.] 

The  plantiff  complains,  and  alleges: 

I.  That  on  the day  of  ,  18...,  at  , 

[or  at  sundry  times  bt  tween  the  day  of  ,  18..., 

and    the  day  of ,  18...,  at ],  the  defend- 
ant received  the  sum  of  dollars  from  one  A.  B.,  to  and 

for  the  use  of  the  plaintiff. 

II.  That  thereafter,  on  the  day  of  ,  18...  [or 

before  the  commencement  of  this  action],  the  plaintiff  demanded 
payment  thereof  from  the  defendant. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof  ^except,  etc.] 

[Demand  of  Judgment.]* 

§  836.  Demand. — It  is  not  necessary  that  the  plaintiff,  in  an 
action  for  money  received  by  defendant  for  his  use,  should  make 
a  demand  before  suit,  where  it  was  the  duty  of  the  defendant  to 
have  remitted  the  money.^  No  demand  is  necessary  before  ac- 
tion brought  to  recover  back  an  illegal  tax ;  ^  so  of  moneys  col- 
lected by  sheriff.^ 

§  837.  Essential  Averments. — The  common  allegation 
that  the  defendant  received  money  ''  for  the  use  of  the  plaintiff," 
is  open  to  the  objection  on  the  ground  of  its  indefiniteness.  In 
some  cases  it  has  been  held  bad  on  demurrer.^  A  complaint 
which  avers  "that  the  defendant  received  a  sum  of  dol- 
lars, belonging  to  or  on  account  of  the  plaintiff,  and  which  is 
now  due  hm,"  states  facts  sufficient  to  constitute  a  cause  of  ac- 
tion.^ Thus,  where  the  complaint  charges  that  A.,  being  in- 
debted to  the  plaintiff  in  a  sum  of  money,  it  was  agreed  between 
the  plaintiff  and  defendant  that  A.  should  pay  the  same  to 
plaintiff  at  the  request  of  plaintiff,  and  thereafter  A.  paid  to  de- 
fendant said  sum  in  gold  coin  of  the  United  Stales  and  for  the 

*  In  those  cases  where  dpmand  is  not  Howard  v.  Prance.  43  Id.  693;  Keyser 

necH-sarv,  the  second  p^rHgrnph  may  v.  S  lafer,  2  Cow.  437. 
be  omitted.     Where  adprnnnfl  is  nee-         3  Newman  ▼.  Supervisors  of  Living- 

essary  to  charge  the  defendant  wiih  ston  Co.,  45  N.  Y.  H76. 
interest,    the     date    of    the    demand         *  Nelson  v.  Kerr,  59  N.  Y.  224. 
ghoul  1  be  inserted.  *  Lienan  v.  Lincoln,  2  Duer,  670. 

»  Siacy  V.  Graham,  14  N.  Y.  492;        •  Belts  v.  Bache,  14  Abb.  Pr.  279. 


374  FORMS  OP  COMPLAINTS.  §  838. 

nse  and  benefit  of  plaintiff,  the  defendant  refused  to  pay  the 
same  to  the  plaintiff  upon  request  duly  made,  an  action  to  re- 
cover said  Slim  in  gold  coin  is  an  action  for  money  had  and  re- 
ceived, and  defendant  is  not  charged  as  a  bailee,^ 

When  a  person  recovers  the  money  of  another,  and  applies  it 
to  his  own  use,  the  law  implies  a  promise  to  repay  it.^  Where 
one  receives  at  the  request  of  another  a  sura  for  a  third  person, 
with  directions  to  pay  the  same  over,  it  is  equivalent  to  an  ex- 
press promise  to  pay  the  same,  and  the  latter  may  maintain  an 
action  for  money  had  and  received. ^  And  no  consideration 
need  be  shown. ^  Where  one  receives  the  money  of  another, 
and  has  not  the  right  conscientiously  to  retain  it,  a  privity  be- 
tween the  true  owner  and  the  receiver  will  be  implied,  as  well  as 
a  promise  to  pay  it.*  Such  implied  promise  to  pay  is  a  fiction 
which  need  not  be  alleged.^ 

§  838.  Nature  of  the  Action— When  it  Lies.— The 
general  rule  is,  that  an  action  for  money  received  lies,  whenever 
money  has  been  received  by  the  defendant,  which  ex  cequo  et 
bono  belongs  to  the  plaintiff ;'  or  which  in  equity  and  conscience 
he  has  no  right  to  retain, ^  whether  there  be  any  privity  between 
the  parties  or  not.  For  it  has  been  held  there  need  be  no  priv- 
ity of  contract  between  the  parties,  in  order  to  support  this 
action,  except  that  which  results  from  one  man's  having  anoth- 
er's money,  which  he  has  not  a  right  conscientiously  to  retain.' 
In  an  authoritative  case  it  has  been  decided  that  this  action 
lies :  1.  Wherever  the  defendant  has  received  money  which  he 
is  bound  in  justice  and  equity  to  refund;  2.  Where  an  agent  is 
not  the  mere  carrier  or  instrument  for  transmitting  the  fund, 
but  has  the  power  of  retaining  it,  and  before  he  has  paid  over 
the  money,  has  received  notice  of  the  plaintiff  's  claim,  and  a 
warning  not  to  part  with  the  fund ;  3.  Where  there  exists  a 
privity  between  the  plaintiff  and  defendant.^" 

§  839.  The  Sams — Duress — Protest. — That  money  ex- 
torted under  duress  may  be  recovered  back  in  this  form  of 
action  has  been  long  established.     In  such  action  the  complaint 

1  Wenfit  V.  Ross.  83  Cal.  650.  *  .Tudson  v.  Gray,  17  How.  Pr.  289; 

'  Uuiiioiid    V.    Uaipeiiier,  3  Johns.  Bern  v.  MMyhew,  1  Daly,  54. 

183.  *  CHUSsiditre  v.  Boers,  2  Keves,  198. 

3  Weston  V.  Barl<er.   12  Johns.  276;  «  Bxibie  v.  Wood,  24  N.  Y.607. 
Therussoii   v.   Mc-Spodon,   2  Hilt.   1;  »  Tutt  v.  Id*-,  3  Blatchf.  249. 
Delaware  etc.  Uo.  v.    Westchester  Co.  *  Kreulz  v.  Livingston,  15  Cal.  344. 
Bank,   4   Den.   97.    But  *ee   Seaman  "  Mason   v.    Waito,    17  iMass.   560; 
V.  Whitiiev,  24  Wend.  260;  Turk  v.  Buel   v.   B  .ughton,  2  Den.  91;  Lock- 
Ridge,  41  N.  Y.  201 :   and  Williams  v,  wo(»d  v,  K.<'ls^a,  41  N.  H.  \Sb, 
Everett.   1  i  Kast,  690,  where  disliuc-  "  Gary  v.  Curtis,  3  How.  U,  S.  236. 
tioDB  are  taken. 


§  840.    MONEY  HAD  AND  KECEIVED  TO  PLAINTIFF'S  USE.    375 

must  state  that  it  was  wroncrfully  obtained,  and  not  state  a 
mere  conclusion  of  law ;  but  the  facts  should  be  fully  detailed, 
80  that  the  court  may  see  from  the  facts  that  the  payment  was 
compulsory.^  It  is  not  sufficient  to  allege  compulsion  in  a  gen- 
eral way.  Money  extorted  by  duress  of  goods  may  be  recov- 
ered.* 

Thus,  a  complaint  in  an  action  to  recover  money  wrongfully 
obtained,  under  color  of  judicial  proceedings,  must  contain 
such  averments  as  will  exclude  the  idea  that  the  mone}"  could 
have  been  lawfully  obtained.'  But  the  influence  exerted  by 
the  provisions  of  the  statutes  of  the  United  States,  requiring 
stamps  to  be  placed  on  passage  tickets  by  steamer  from  San 
Francisco  to  New  York,  does  not  constitute  the  kind  of  coercion 
or  compulsion  which  the  law  recognizes  as  sufficient  to  render 
the  payment  therefor  involuntary.'*  Generally,  to  constitute 
compulsion  or  coercion,  so  as  render  a  payment  involuntary, 
there  must  be  some  actual  or  threatened  exercise  of  power, 
possessed  or  supposed  to  be  possessed  by  the  party  exicting  or 
receiving  the  money.*  The  object  of  the  protest  is  to  take  from 
the  payment  its  voluntary  character,  and  conserve  to  the  party 
the  right  to  recover  it  back.  The  fact  that  a  party  pays  money 
under  protest  does  not  change  the  character  of  the  transaction 
or  enable  him  to  recover  it  back,  unless  the  payment  was  under 
duress  or  coercion,  or  where  undue  advantage  was  taken  of  his 
situation.^ 

Where  money  was  not  credited  on  an  account  upon  which 
judgment  by  default  was  rendered  it  may  be  recovered  back.' 
Where  a  special  contract  remains  open,  the  remedy  is  on  the 
contract,  but  if  the  contract  has  been  put  an  end  to,  an  action 
for  money  had  and  received  lies  to  recover  any  payment  that  has 
been  made  under  it.^ 

§  840.  When  it  does  not  Lie — Voluntay  Payments. — 
The  simple  facts  that  A.,  owing  money  to  B.,  cliose  to  p  ly  it  to 

1  Com inercial  liuiik  V.  Rochester,  41  *  Bruiiia2;in  v.  Tillintjbast  18  Cal. 
Barb.  341.  265;  Kansas  &  Pac.  li.'li.  Co.  v.  VVy- 

'  Astlfjr  V.  Rfvnolfls  2  Stra.  915;  aridotie  Co.,  10  Kan.  587. 
Bates  V.  JnhrHon",  H  Johns.  Ca*.  238;  '  Parker  v.  Daiiforth,  16  Mass.  806; 
4  T.  R.  4H5;  Id.  561;  Chase  v.  Dwinal,  Richardson  v.  Maine  Ins.  Co.,  6  Id 
7  Greonl.  13t;ChM«ov.Tavlor,4H.rr.  14;  Lorinsf  v.  Maiisfield,  17  Id.  .S94; 
&  J.  54;  Littlf  V.  Gibson,  3N.  H.  508;  Whitcomb  v.  Williams,  4  Pick.  228; 
Tutt  V.  Lie,  3  Bia tchf.  249;  MoMilleu  Gary  v.  Hull,  11  Johns.  441  ;  Cobb  v. 
v.  Richards,  9  Cal.  HtJo.  Curiis,  8  Id.  470;  Phil,  on  Ev. ;  Cow. 

»FuMkbou-er  V.  ll.sv,  17  Mo  225;  &  H.  8'>2 ;  confra,  IN.  H  HH;  Mitch- 
Chandler  V.  Sani^er,  114  Mass.  364.         ell  v.   Sanford,  11   Ala.  6U5;   Hinck  V, 

*  G'lrrison  v.  rillinffba<t.lS  Cal.  404.     Wood,  43  liarb.  315. 

*  IJiuuiHijiu  V,  liiUiiyhast,  lb  Cal.  *  Chesippuke  and  Ohio  Canal  Co.  V, 
250.  KnajJi),  9  i'oi.  541. 


376  FORMS  OF  COMPLAINTS.  §  841, 

C,  under  the  impression  that  C.  was  entitled  to  control  the 
services  of  B.,  and  to  receive  all  compensation  therefor,  do  not 
entitle  B.  to  maintain  an  action  against  C.  for  money  had  and 
received,^  Under  a  count  for  money  had  and  received,  a  surety 
can  not  recover  of  his  principal  for  money  paid  by  the  surety 
on  account  of  his  liability  as  such.^  To  sustain  a  count  for 
money  had  and  received  it  must  appear  that  the  defendant  had 
received  money  due  to  the  plaintiff,  or  something  which  he 
had  really  or  presumptively  converted  into  money  before  suit 
brought,  or  which  he  had  received  as  money,  and  instead  of  it.^ 
Money  voluntarily  paid  upon  a  claim  of  right  with  full  knowl- 
edge of  all  the  facts,  can  not  be  recovered  back  merely  because 
the  party  at  the  time  of  payment  was  ignorant  of  or  mistook 
the  law  as  to  his  liability.^  Money  voluntarily  paid  can  not  be 
recovered  back,  even  though  it  could  not  have  been  enforced 
by  law.*  So  money  advanced  on  part  performance  of  an  agree- 
ment can  not  be  recovered  back.^ 

§  841.  Statute  of  Limitations. — Where  the  promise  is 
laid  of  a  d:\y  more  than  two  years  prior  to  the  commencement 
of  the  action,  the  complaint  is  demurrable  on  the  ground  that  it 
shows  the  demand  to  be  barred  by  the  statute  of  limitations.''' 

§  842.  Same,  against  Attorney  or  Agent  with  Demand. 

Form  No.  202. 
[Title,] 
The  plauitiff  complains,  and  alleges: 

I.  That  on  the day  of >.,  18..,  at  the  county  of 

,  state  of  ,  the  defendant  received  from  the 

plaintiff,  as  the  agent  of  said  plaintiff,  the  sum  of dollars, 

to  the  use  of  the  said  plaintiff. 

II.  That  thereafter,  and  before  this  action,  the  said  plaintiff 
demanded  payment  thereof  from  said  defendant. 

III.  That  the  defendant  has  not  been  paid  the  same,  nor  any 
part  thereof. 

[Demand  of  JtrosMKN'T.] 
§843.     Liability  of  Attorney  and  Agent — An  attorney 
is  not  liable  for  moneys   collected  until   after   a   demand  or  in- 
structions to  remit.  ^    But  the  right  to  a  demand  may  be  waived. 

1  Murphy  V.  Ball,  88  Barb.  262.  413;  Commercial  Bank  v.  Rochester, 

•Child  V.  Eurelia  etc.    Works,  44  42  Barb.  488. 

N.  H.  354.  «  H.iiisbrough  v.    Peck,  5  Wall.  U. 

•Hatten   V.    Robinson,     4     Blackf.  S.  4".t7. 

(Ind.)  479;  Mason  v.  Wnite,  17  Mass.  '  K<^llerv.  Hicks,  22  Cal.  457. 

66;  Aiiislie  v.  Wilson,  7  Cow.  662.  »  BeMnisley  v.  R.>()t,   11  .Johi;8.  464; 

♦Brumagim  V.  Tillinghast,  18  Cal.  PtMftord  v.  Richardson,  15  W«nd.  802; 

265.  Taylor  v.  BhIps,  6Cow.  376;  Walradt 

» Corkle    v.    Maxwell,     8  Blatchf.  v.  Maynard,  8  Barb.  581. 


§  845.    MONEY  HAD  AND  RECEIVED  TO  PLAINTIFFS  USE.    377 

And  where,  au  attorney  set  up  a  claim  against  his  client  to  a 
larger  amount,  it  was  held  a  waiver  from  a  demand. ^  Attorneys 
as  partners  are  liable,  although  it  was  paid  to  one  of  them,  and 
has  been  demanded  from  him  only.^  A  person  not  an  attorney, 
who  collects  a  note  at  the  request  of  another  is  liable  for  the 
amount,  after  a  reasonable  time,  without  demand. ^  Money 
collected  by  a  subagent  may  be  recovered.*  Or  money  paid  to 
an  agent,  if  before  it  be  paid  to  the  principal,  notice  be  served 
upon  the  agent  that  it  will  be  reclaimed.* 

§  844.  Demand  Sssential. — A  count  in  a  complaint  in  such 
an  action  is  bad  when  it  is  not  alleged  that  demand  has  been 
made  on  defendant ;  as  a  party  receiving  money  for  the  use  of 
another  is  rightfully  in  possession  till  the  same  is  demanded.* 
One  who  has  received  money,  standing  in  the  position  of  trustee, 
e.  g.j  a  collecting  agent,  is  in  general  not  liable  in  an  action  for 
money  received  until  demand  is  made  or  some  breach  of  trust 
or  duty  committed.'''  As  where  a  bank  receives  money  it  can 
not  be  sued  until  after  it  has  been  drawn  for.^  Bnt  a  deposit 
with  a  stockholder,  or  an  alleged  wager,  may  be  sued  for  without 
a  previous  demand,  where  the  money  has  been  paid  over  before 
the  action. 9 

§  845.  SuScient  AUegitions. — A  complaint  which  alleges 
that  the  defendant  was  em[)loyed  as  plaintiff's  agent  for  the 
purchase  of  stock,  that  in  settlement  between  the  seller  and  de- 
fendant, the  former  was  found  to  be  indebted  to  the  latter,  as 
the  plaintiff's  agent,  in  a  certain  sum,  which  he  paid,  but  which 
the  defendant  refuses  to  pay  to  the  plaintiff,  states  a  sufficient 
cause  of  action.^*^  A  complaint  against  an  agent  for  money  re- 
ceived, who  pretends  to  have  been  robbed  thereof,  may  properly 
allege  simply  that  the  defendant  bemg  in  possession  of  the 
plaintiff's  property  as  his  agent,  converted  the  same  to  his  own 
use.^i  That  defendant,  as  such  agent,  had  collected  from  divers 
persons  divers  sums,  either  stating  the  aggregate  or  askin;;  an 
accounting,  is  sufficient.^^  In  an  action  by  a  corporation  to  re- 
cover funds  received  by  the  treasurer  thereof,  if  the  complaint 
shows  the  relation  of  the  parties,  and  gives  a  statement  of  the 

^Td.;  and  see  Satterlee  v.  Frazer,  2  •  Reina  v.  Cross,  6  Cal.  31  ;  Green- 

Sandr.  141.  field  v.  Str.  "Giumell,"  Id.  «8. 

»  MfFarland  v.  Crary,  6  Wend.  217;  '  Walrath  v.  Thompson.  6  Hill,  540. 

compare  Ayrault  v.   Chamberlin,  26  *  Downs  a.  Phoenix  B'k,  G  Hill,  297. 

Barh.  83.  »  Ruekman  v.  Piicher,  1  N.  Y.  392; 

»  Hickok  V.  Hickok,  13  Rarb.  632.  see  Johnson  v.  Russell,  37  Cnl.  670. 

*  Wilson  V.  Smith,  3  How.  U.  S.  i"  Bates  v.  Cobb.  5  Bosw.  2'.i. 

768.  "  Frost  V.  MoCarnar,  29  Barb.  617. 

•  Wood  V.  United  States,  Dev.  55  "  West    v.  Brewster,  1   Duer,  617. 


878  FORMS  OP  COMPLAINTS  §  846. 

moneys  received  by  him,  and  that  the  defendant  is  indebted,  it  is 
suflficient.  A  demand  will  be  inferred,  and  if  none  were  made, 
defendant  should  pay  the  debt,  but  not  the  costs.^ 

§  846.  Who  may  Recover. — An  action  for  money  had  and 
received  is  proper,  when  a  recovery  is  sought  of  money  which 
defendant  has  received  and  refused  to  pay  on  demand  to  the 
plaintiff,  who  is  entitled  to  it.^  Where  an  agent  or  servant  ap- 
plies money  of  his  employer,  in  his  hands,  to  discharge  the  debt 
of  a  third  person,  the  employer  may  recover  it  from  the  payee 
as  money  received  to  his  use,  if  the  payee  received  it  with  a 
knowledge  of  the  facts. ^  Either  one  of  the  several  joint  owners  of 
claims  against  a  third  person,  they  not  appearing  to  be  part- 
ners, may  maintain  an  action  against  an  agent  to  recover  his 
share  of  money  had  and  received  by  the  latter  from  the  debtor.* 
An  assignee  to  recover  a  surplus  collected  by  a  creditor,  or  of 
the  assignor,  must  give  notice  of  the  assignment,  and  make  a 
demand.^ 

§  847.     The  Same— Another  Form. 

Form  No.  203, 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  between  the  day  of   ,   18...,  and  the 

day  of    18...,  the  defendant  was  the  agent  of  the 

plaintiff  in  [stating  generally  the  employment],  that  he  col- 
lected and  received  as  such  agent,  from  divers  persons,  certain 
sums  of  money,  for  and  on  account  of  the  plaintiff,  amounting  in 

the  whole  to  the  sura  of  dollars ;  no  part  of  which  has  been 

paid  by  defendant  to  the  plaintiff. 

II.  That  on  the  day  of  ,  18...,  at ,  the 

plaintiff  demaniled  payment  of  the  same  from  the  defendant. 

III.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Dkmand  of  Judgment.] 
§  848.  Notes  Received. — Under  a  complaint  in  an  action 
against  an  agent  for  money  had  and  received,  the  pliiintiff  may 
recover  where  it  appears  that  the  defendant  received  notes 
which  were  good  and  collectible,  and  by  his  transactions  he  re- 
leased the  debtor  and  deprived  his  principal  of  all  remedy  except 
against  himself.* 

*  Seconfl  Avpmie  R  R.  Co.  v.  Cole-        *  S^nrs  v.  Patrif^k.  23  Wpnd.  628. 
niH'i-^-i  Bail>.  300.  «  CjoiIihs  v.  Cumrnini!-,  G    Cow.  1H8, 

8  Siiiiiwood  V.  S.go.  22  Ciil.  ."ilT.  not!-;   Floyd   v.    Ditv.    3     M«ss.    403; 

»  A.nidoii  V.  VV.i.M,  er   3    llill,   137.     11  rudsl.-v    v.     Ro.-U    11     .John.    464; 

*  Altttu  V.  Browu,  61  Barb.  66.  Allou  v.  Browii,  61  Barb.  8(i. 


§  852.     MONEY  HAD  AND  RECEIVED  TO  PLAINTIFFS  USE.    379 

§  849.  For  Money  Received  by  Defendaut  Through 
Mistake. 

Form  No.  g04» 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at ,  the 

defendant  presented  to  the  plaintiff  an  account  of  mutual  deal- 
ings theretofore  had  between  them,  which  sai<i  account  set  forth 
a  balance  due  from  the  plaintiff  to  the  defendant  of  the  sum  of 
dollars. 

II.  That  the  plaintiff,  believing  said  account  to  be  correctly 
stated,  then   paid  said   sum  of dollars  to   the  defendant. 

III.  That  in  fact  said  account  was  not  correctly  stated,  but 
that  it  overcharged  the  plaintiff  with  the  sura  of  dol- 
lars by  an  error  in  adding  up  the  items  thereof  [or  otherwise, 
specifying  the  error]. 

IV.  That  defendant  has  not  paid    the    siid    sum  of 

dollars  to  the  plaintiff,  thougli  requested  so  to  do. 

[Demand  of  Juiximknt.] 

§  850.  When  the  Action  Lies. — Money  paid  under  a 
mutual  mistake  of  facts  may  be  recovered  back.i  But  money 
paid  by  mistake  of  law  can  not  be  recovered  back,  there  being 
no  difference  between  money  paid  in  ignorance  of  law  and 
money  paid  by  mistake  of  law. ^ 

§  851.  Essential  Averm9nts — Dennncl, — "Where  money 
is  paid  by  mistake,  notice  of  the  mistake  and  demand  of  repay- 
ment before  suit  to  recover  it  back  are  not  necessary.  The 
party  receiving  the  money  under  such  circrumstances  is  not  a 
bailee  or  a  trustee.  But  such  a  demand  may  affect  the  ques- 
tion of  interest.^  The  facts  constituting  tiie  mistake  must  be 
alleged.*  A  direct  averment  of  mistake  is  unnecessary,  if  the 
facts  upon  which  it  is  founded  are  stated. ^  An  allegation  of 
fraud  will  not  support  evidence  of  mistake,  nor  vice  versa.^ 

§  852.    For  Price  of  Goods  Sold  by  a  Tactor. 

Form  No.  805. 
[Tit  LB.] 

The  plaintiff  complains,  and  alleges : 

^Bnrrv.    Vepder,    3  Wend.    412;  »  Utica  Bnnk  V.   Van    Gieson,    18 

Wlieadon  V.  Olds,  20  Id.  174;  Canal  Johns.  4rt5. 

Bank  V.   Bank  of  Albany,  1  Hill,  287;  *  Finch  v.  H  >11inger,  47  Iowa,  178; 

Bank  of  Coinm»rce,  V.  IJnion  Bink.  3  Stepliens   v.  Murton,    6    Ore;;.    193; 

N.  Y.  230;  Duncan  v,  Berlin,  60  Id.  Sriioonover    v.    Dous^herty,  05    lad. 

151;  Manchester  v.  Burns,  45  N.  H.  403:  EvaHsv.  Sto2«r,  5  Ort**.  147. 

482.  6  Welles  V.  Yaies,  44  N    Y.  525; 

*  Schlesinper  V.   United    States,    1  Mnhnr  v.  Hibemia  Ins.  Co.,  67  Id.  288. 

Notl   &  H.  16 ;  EllioU  V.  SwMlwout,  •  Stephens  v.  Murlon,  6Ur.-sr.  193. 

10 1'tU  1'61,  Leigliluu  V.  Uiaut,  20  Miuu.  345. 


380  FORMS  OF  COMPLAINTS.  §  853. 

I.  That  on  the  day  of ,  18..,  at , 

the  defemliint,  in  consideration  of  his  reasonable  coinrnissions, 
agreed  with  plaintiff  to  sell  for  plaintiff  certain  goods  [lifly  bar- 
rels of  flour]. 

II.  Thatonthe day  of ,  18...,  at   , 

he  delivered  to  defendant  [tifuy  barrels  of  flourj,  for  sale  upon 
commission. 

III.  Thatonthe dayof ,18...  [oron  some 

other  day  unknown  to  the  plaintiff,  before  the day  of 

,  18...],  the  defendant  sold  the  said  merchandise  for 

dollars. 

[IV.  Tliat  the  commission  and  expenses  of  the  defendant 
thereon  amounted  to dollars.] 

V.  Thatonthe  dayof ,  18...,   the  plaintiff 

demanded  from  the  defendant  the  proceeds  of  the  said  mer- 
chandise. 

VI.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Dkmand  of  Judgmknt.]^ 

§  853.  Essential  Avermants — Demand. — In  an  action 
against  an  agent  for  not  accounting,  etc.,  a  request  to  account 
and  pay  over  must  be  alleged  and  proved.^  An  exi)res8  demand 
should  be  alleged. ^  In  an  action  against  a  factor  for  the  pro- 
ceeds of  goods  sold,  of  which  he  apprised  his  principal,  a  de- 
mand must  be  shown,  unless  he  had  instructions  to  remit,  or 
the  usage  of  his  business  made  it  his  duty  to  do  so  without  in- 
structions.* If  the  complaint  in  an  action  for  the  price  of  goods 
sent  on  commission  alleges  that  defendant  sold,  but  did  not 
account  to  plaintiff,  the  plaintiff  must  prove  that  a  sale  actually 
took  place.* 

§  854.  Election  of  Retnsdy — Waiver  of  Tort. — ^Under 
a  complaint  which  contained  a  count  for  indebtedn-ss  from  the 
defendant  to  the  plaintiff,  for  property  sold  an  I  delivered,  and 
money  received  to  the  plaintiff  's  use,  the  plaintiff  may  prove  a 
tortious  taking  by  the  defendant,  and  the  sale  of  the  property 

*  Tlii8  form  is  drawn  on  the  pre-  '  Bushnell  v.  McChuIpv,  7  Cal.  421. 
sumption  tliat  the  lactor  Iihs  not  ac-  The  dislinclion,  in  respoct  to  the 
counted.  If  he  has  accounted,  but  necessity  of  provinu;  a  aL-mHiid,  be- 
not  paid,  the  better  form  is  on  an  tween  an  action  fur  not  accounting, 
"account  stated."  If  he  has  not  ac-  and  an  action  for  not  payinfj  over,  is 
counted,  it  is  improbable  that  the  discussed  in  Guoley  v.  Bells,  24  Wend, 
plainlitf  will  know  the  precise  amount  203. 

of  his  exp"!nsi's,  and  it  is  not  neci-s-  '  liaird  v.  Walker,    12  Barb.    298: 

sary  to  credit  liira   with  them  in  the  Halden  v.  Cratts,  4   E.  IX  Smith,  490. 

complaint;    N.  Y.     Code     Comm'rs,  ♦  Cooley  v.   lietts,    24   Wend.  203; 

note.     The    third    allefjHtion    is     not  Ferris  v.  Paris,  10. lohns.  285;  Ualden 

essential,  but    mav    prevent  any  au-  v.  Crafts,  4  K.  D.  Smith,  490. 

Bwur  selling  up  big  ulaim.  *  Elbuurne  T.  Upjohn,  1  C.  &  P.  572. 


§  856.     MONEY  HAD  AND  RECEIVED  TO  PLAINTIFF'S  USE.    381 

by  liim,  anl  the  receipt  of  the  money,  and  the  waiver  of  the  tort, 
and  sue  for  the  money  had  and  received,  or  for  the  value  of  the 
property,  as  for  goods  sold  and  delivered.  If  the  wrong-doer 
sells  the  property,  and  receives  the  money  therefor,  an  action 
lies  at  the  suit  of  the  owner  for  money  had  and  received,  and 
such  an  action  is  a  waiver  of  the  tort.^  In  such  an  action  it  is 
not  necessary  to  state  how,  or  under  what  circumstances,  the 
money  came  to  the  defendant's  hands.  The  receipt  of  the 
money  to  the  plaintiff's  use  is  the  fact  which  constitutes  the 
cause  of  action.* 
§  855.  Against  Factor,  for  Price  of  Goods  Sold  on  Credit. 

Foitn  No.  206, 

[TlTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,18...,  the  plaintiff 

employed  the  defendant  to  sell  certain  goods  and  merchandise, 
of  the  value  of dollars,  upon  commission,  and  deliv- 
ered the  same  to  the  defendant,  who  then  promised  to  sell 
them,  and  be  responsible  to  the  plaintiff  for  the  price  thereof. 

II.  That  on  the day  of ,  18....,  as  the  plaintiff 

is  informed   and  believes,  the  defendant   sold  said   goods  and 

merchandise  for  the  sum  of dollars,  on  a  credit  of 

months  from  that  date,  which  credit  expired  before  the  com- 
mencement of  this  action. 

III.  That  the  commission  and  expenses  of  the  defendant 
thereon  amount  to dollars. 

IV.  That  plaintiff  further  alleges,  on  information  and  belief, 

that  the  sum  of  dollars  is   the  price  of  said  goods  and 

merchandise,  after  deducting  said  charges. 

V.  That  on  the day  of  .,  ,  18...,  at  , 

the  plaintiff  demanded  of  the  defendant  payment  of  the  said 
sum  of dollars. 

VI.  That  he  has  not  paid  the  same  nor  any  part  thereof. 

[DCMAND   Oy    JUDGMBNT.] 

§  856  Default  of  Purchaser. — It  is  unnecessary  for  the 
plaintiff  to  aver  that  the  purchaser  was  in  default,  nor  is  it  nec- 
e  sary  to  aver  a  demand  on  him,  though  it  might  be  otherwise 
if  the  factors  guaranteed  the  payment  of  a  price  to  be  collected 
by  the  principal.* 

>  Putnam  v.  Wise,  1  Hill,  284,  240,  pending  v.  Shoemaker,  37  Barb.  270; 

note  a;  Schreppel  v.  Corning,  2  Seld.  compare  Byxbie   v.  Wood,  24  N.   Y. 

112;  Roth  V.  Palmer,  27  Barb.  662.  607. 

»  Scovil  V.  New,   12  How.  Pr.  326;  «  1  Pars,  on  Cont.  78;  Milliken  v, 

Allen  T  Patterson,  3  Seld.  476;  Har-  Bjerly,  6  How.  Pr.214. 


382  FORMS  OP  COMPLAINTS.  §  857. 

§  857.  Demand. — The  rule  is  settled  in  New  York,  that  a  for- 
eign factor  is  not  liable  to  an  action  for  the  proceeds  of  sales 
made  by  him  for  account  of  his  principal  on  commission,  until 
a  demand  made  by  the  principal,  or  instructions  to  remit. ^ 

§  858.  AgainstBiToker  for  Proceeds  of  Note  Discounted. 

Form  No.  £07. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,18..,  at the 

plaintiff  employed  the  defendant  to  negotiate  a  promissory  note, 
the  property  of  the  plaintiff,  made  by  one  A.  B.  [describe  the 
note],  and  thereupon  he  delivered  the  same  to  the  defendant, 
who  undertook  to  negotiate  the  same  for  a  reasonable  comnais- 
sion,  and  to  pay  the  proceeds  over  to  the  plaintiff. 

II.  The  plaintiff   further   alleges,  on  information  and   belief, 

that  on  the day  of ,  18 ,  the  defendant  procured 

said  note   to  be  discounted  at  the Bank,  and  received  as 

the  proceeds  thereof  the  sum  of  dollars. 

III.  Tliat  the  commission  and  expenses  of  the  defendant 
thereon  amount  to 

IV.  That  on  the day  of ,  18....,  at , 

the  plaititiff   demanded  of    the   defendant   dollars,   the 

balance  of  the  proceeds  of  said  note  after  deducting  said  expenses 
and  commission. 

V.  That  he  has  not  paid  the  same. 

[Dkmand  of  Juugmbnt.] 

§  859.  Unauthorized  Sale.  —For  selling  without  authority 
stock  which  the  broker  had  purchased  for  the  plaintiff,  if  this 
fact  be  shown  in  the  complaint,  and  that  it  was  to  be  delivered 
to  him  within  a  specified  time  at  his  option,  but  that  he  sold  it 
meanwhile  against  his  express  instructions,  a  demand  and  tender 
on  the  part  of  the  plaintiff  need  not  be  alleged.^ 

»  Walden  v.  Crnftg,2  Abb.  Pr.  301 ;  Hnlflen  v.  Crnfts,  4  E.  D.  Smith,  490; 
Ferris  V.  Paris,  10  Johns.  285;  Lillie  v.  Hovt,  5  Hill,  395, 
>  Clttrk  V.  Mei^j,  13  Abb.  Pr.  4ii7. 


§  8G1.  MONEY  LENT.  883 


CHAPTER    X. 

FOR  MONEY  LENT. 

§  860.  Lender  against  Borrower. 

Fo7m  No  SOS. 

(TiTLK.] 

The  plaintiff  complains,  and  alleges; 

I.  That  on  the day  of    ,  18  ..,  at ,  he 

lent  to  the  defendant,  at  his  request,  dollars. 

II.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

Wherefore    the    plaintiff   demands   judgment   for    

dollars,  with  interest  fiom  the da}'  of ,  18... 

§  861.  Essential  Averments. — Every  material  fact  mnst 
be  alleged  with  certainty;  and  all  those  facts  which  are  nec'es- 
sary  to  distinguish  the  transaction  in  question  from  every  other 
like  transaction  are  material.  These  details  are  often  immate- 
rial, in  the  sense  that  no  issue  can  be  made  upon  them ;  j^et  are 
material  as  matter  of  description.  For  instance:  if  to  the  plaint- 
iff's allegation  that  "  at  San  Francisco,  he  lent,"  the  defendant 
should  answer  that  he  never  borrowed  any  money  from  the 
plaintiff  at  San  Francisco,  the  answer  would  be  frivolous. 
Time  is  not  ordinarily  material,  except  the  order  of  occurrences, 
and  to  fix  the  date  when  interest  began.  When  no  time  is  fixed 
for  the  repayment  of  the  loan,  the  presumption  is  that  it  was  to 
be  paid  immediately.^  Nor  is  it  necessary  to  show  that  the  debt 
had  become  payable  at  the  commencement  of  the  action,  as  that 
is  matter  of  defense  to  be  set  up  in  the  answer.^  But  whenever 
time  is  material,  as  in  the  case  of  demand  and  notice  to  charge  an 
indorser,  it  must  be  directly  and  truly  stated. ^ 

It  has  been  held  that  an  allegation  that  the  money  was  lent 
at  the  defendant's  request  may  be  omitted.*  Although  it  is  nec- 
essary to  prove  a  request  in  order  to  constitute  a  loan.*  But  in 
general,  a  request  in  such  case  will  be  implied.^  Where  a  spe- 
cial request  is  necessary  to  be  averred,  the  general  allegation  of 
**  though  often  requested  "  is  not  suflflcieut.'^    The  defect,  how- 

1  Peets  V.  Bratt,  6  Barb.  662.  L.  98t;8ee  also,  in   this    connection, 

« Smith  V.    Holmes,   19  N.  Y.  271;  Brown   v.  Gamier,  6  Taunt.   389;   8. 

Maynard  v.  Talcolt,  11  Barb.  5G9.  C,  1  Eng.  Com.  L.  R.  421,  where  it 

»»  H?trov.  Wetmore,  16  Cal.  379.  was  held  that  "hired"  impliea  a  re- 

*  Victors   V.  Davis,  1  Dowl.  &  L.  quest 

9P4.  T  u„8h  V.  Stevens,  24  Wend.  256; 

s  Brown  v.  Gamier,  6  Taunt  3«9.  Whitton  V.  W  liittou,  38  N.  H.  127. 

*&ee  Yicturs  t.  Davis,  1  DowL  & 


384  FORMS  OP  COMPLAINTS.  §  862. 

ever,  is  cured  by  verdict.^  In  an  action  to  recover  money  loaned, 
if  the  complaint  charges  tlie  indebtedness,  the  manner  in  which 
it  accrued,  the  promise  to  pay,  and  the  refusal,  it  is  sufficient.^ 
It  is  not  necessary  to  state  when  the  debt  was  to  be  repaid,  ex- 
cept for  the  purpose  of  fixing  a  date  for  interest.  The  pre- 
sumplion  of  law  is,  that  it  was  to  be  paid  immediately. ^  Nor 
is  it  necessary  to  show  that  the  debt  was  due  at  the  commence- 
raeiit  of  the  action.  If  it  was  not,  that  is  matter  of  defense,  to 
be  set  up  in  the  answer.*  Where  the  count,  in  an  action  for 
money  lent  and  advanced,  sets  forth  a  demand  for  a  certain  sum, 
and  the  jury  find  a  verdict  for  a  laiger  sum,  it  is  not  erroneous, 
if  the  declaration  covered  the  larger  sum  in  the  ad  damnum.^ 
It  may  be  doubted  whether  the  allegation  of  non-payment  is 
necessary. 8 

In  an  action  where  the  complaint  set  out  a  draft  drawn  by 
dcfendnnts  on  a  house  in  Boston,  which  it  avers  was  drawn  with 
the  understanding  that  plaintiff  should  pay  the  same,  but  did 
not  aver  that  after  paying  the  draft,  he  canceled  it,  and  delivered 
it  up  to  the  defendant;  it  was  held  that  the  defects  were  fatal 
in  this  form  of  action.' 

§  862.  Payments  Made  on  Account. — The  plaintiff  need 
not  state  payments  made  on  account,  as  this  is  matter  of  de- 
fense. But  where  the  complaint  is  verified,  there  is  a  necessity 
to  do  so;  and  in  such  case  he  should  briefly  state  what  amount 
has  been  paid.®  As  any  payments  must  be  pleaded,  it  is  certain 
that  the  most  general  form  of  averring  non-payment  is  sufficient. 
It  is  not  necessary  to  add  "  or  any  part  thereof."  Although 
n  t  necessary,  it  is  highly  proper  to  credit  the  defendant  with  any 
payments. 

§  863.    The  Same— No  Time  for  Payment  Agreed  on. 

Form  No.  209, 

[TiTLK.] 

The  plaintiff  complains,  and  alleges; 

I.  That  on  the day  of ,  18...,  he  loaned  the 

defendant,  for  his  accommodation,  and  at  his  request,  and  with- 
out any  time  being  agreed  on  for  repayment,  the  sum  of 

dollars. 

1  Loflingwell    V.  White,   1    Johns.        «  Soe  Lflnning  v.  Carppnter,  20  N. 
Cas.  99.  Y.   4j8;    McKjring    v.   Bull,  16  Id. 

2  Williuins  V.  GIapejow,  1   Nev.  533.    297. 

»  Peets  V.  Bnitt,  6  Harb.  662,  ">  Lambprt  v.  Slade,  8  Cal.  830. 

*  Smith  V.  Holmes,  19  N.  Y.271.  •  Van  Demnrk  v.  Van    Demurk,  18 

»  Mill  V.  Hiit.k  ol  United  States,  11  How.  Pr.  872;  Giles  v.  Betz,  15  Abb. 

Wlieat.  431,  at  p.  410.  Pr.  285, 


§  865.  MONEY  LENT.  385 

IT.  That  he  has  demandod  payment  of  the  same,  bnt  the  de- 
fendant has  nut  paid  said  sum  of  dollars,  nor  any  part 

thereof. 

[Demavd  of  Judgmknt.] 

§  8G4.    By  Assignee  of  Lender  against  Borrower. 

tortn  No.  SIO. 
[Tjtlb.] 

The  plaintiff  complains,  and  alleges: 

I,  That  on  the day  of ,18...,   at ,  the 

defendant  was   indebted  to  one  A.  B.,  in  the  sum  of 

dollars,  on  an  account  for  money  lent  by  said  A.  B.  to  the  de- 
fendant. 

II.  That  on  the day  of ,  18...,  at ,  the 

said  A.  B.  assigned  said  indebtedness  to  the  plaintiff,  of  which 
assignment  defendant  had  due  notice. 

HI.  That  lie  has  not  paid  the  same,  nor  any  part  thereof. 
[Dkmand  of  Judgmknt.]* 

§  865.    Partners  Lenders,  against  Partners  Borrowers. 

Fot-m  No.ilL 

[TlTLK.] 

A.  B.  and  C.  D.,  the  plaintiffs,  complain  of  E.  F.  and  G.  H., 
the  defendants,  and  allege : 

I.  [Allege  partnership  as  in  Form  104.] 

II.  That  on  the day  of  ,   18...,  at , 

the  plaintiffs  loaned  to  the  defendants  at  their  request  the  sum 
of  [five  bundled]  dollars,  on  condition  that  it  should  be  repaid  on 
demand,  with  interest  from  that  date,  at per  cent  per  month. 

III.  That  plaintiffs  have  demanded  payment  thereof. 

IV.  That  defendants,  or  either  of  them,  have  not  paid  said 
gum,  and  the  interest,  or  any  part  thereof. 

Second.  And  for  a  second  cause  of  action,  the  said  plaintiffs 
allege : 

I.  That  on  the day  of ,  18...,  at ,  the 

plaintiffs,  at  the  special  instance  and  request  of  the  said  defend- 
ants, paid,  laid  out,  and  expended  for  the  said  defendants,  and  to 
and  for  their  use  and  benelit,  the  sum  of  [five  hundred]  dollars ; 

*  This  form  of  compLiint  should  only  plaint  may  be  obnoxious  to  a  motion 

be  employed  in  cases  where  the  items  to  make  it  more  definite   and   i'<Ttain, 

of  the  claim  are  embraced   in  an  ac-  if  defendant  is  prejudiced   by  its  want 

count :  Alien  v.  Patterson,  7  N.  Y.  476.  of  particularity  :  Eno  v.  Woodward,  4 

For  authorities  in  support  of  the  ahove  N,  Y.   249;    see    also    VVoid   v.   An- 

form,  consult  Freeborn  v.  Glazier,  10  thony,  9  How.  Pr.  78;    Chce-brough 

Cal.  337;   De  Witt  v.  Porter,   13  Id.  v.    New    York  &  Erie  K.  U.    Co.,  IS 

171;   Beekman   v.  Plainer,   15  Barb.  Id.  557;  Hall  v.  Southmayd,  Ij  Barb. 

650;    Second  Avenue    R   R.   Co.  v.  32      But  not  necessarilv  so:  Adanofl 

Coleman,  24    Barb.  800.    Where  the  v.  HoUey,  12  How.  Pr.  326. 
action  is  not  on  an  account,  this  coiu- 
EsTKB,  Vol.  I — 25. 


386  FORMS  OF  COMPLAINTS.  §  866. 

in  con'sideration  whereof,  the  said  defendants  promised  the  said 
plaintiffs  to  pay  unto  the  said  plaintiffs  the  sum  of  [five  hundred] 
dollars  on  demand,  together  with  interest  thereon. 

II.  That  on  the day  of  ,  18..,   at  , 

ithe  plaintiffs  demanded  payment  thereof. 

V.  That  the  defendants,  or  either  of  them  have  not  paid  the 
rsame,  the  interest  or  any  part  thereof;  except,  etc.  [State 
(briefly  the  total  payments,] 

[Demand  ot  JimaMKNT.] 


CHAPTER  XL 

FOR  MONEY  PAID. 

§  866.  For  Money  Paid  to  a  Third  Party  at  Defend- 
ant's Request. 

Form  No.  912. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of ,  18..,  at ,  at 

the  request  of  defendant,  plaintiff  paid  to  one  A.  B 

dollars. 

II.  That  in  consideration  thereof,  defendant  promised  to  pay 
the  same  to  plaintiff. 

III.  That  on  the  day  of 18..,  the  plaintiff  de- 
manded payment  of  the  same  from  the  defendant,  but  he  has 
not  paid  the  same  nor  any  part  thereof. 

[Dkmand  of  Judgment.] 
§  867.  Action  for,  when  it  Lies. — In  this  action  there 
may  be  a  recovery  of  money  which  an  acceptor  has  paid  for  the 
drawer.^  or  which  a  surety  has  been  obliged  to  pay  for  his 
principal.^  In  general,  it  lies  upon  an  implied  engagement  by 
the  defendant  to  repay. ^  But  the  objection  that  there  was  a 
special  agreement  can  not  defeat  the  action  for  money  paid, 
when  the  written  contract  produced  contained  nothing  more 
than  what  the  law  would  imply.'*  Where  the  plaintiff  in  an 
action  omitted  to  state  the  amount  of  money  advanced  and 
sought  to  be  recovered,  the  defect  is  not  cured  by  a  bill  of  sale 
filed  with  a  petition,  though  it  contains  a  statement  of  the 
amount  advanced.*     In  an  action  to    recover  back  money  re- 

■1  Whitwellv.  Brighftm,19  Pick.  121.  ♦  Gibbsv.  Bryant,  1  Pi-k.  118. 

'  Ward  V.  Henrv,  6  Conn.  598.  *  Allen    v.     Sliortridge,     1    Duval 

« Grissell  v.  Robinson,  32  Eng.  0.  (Ky.)  34. 
L.  16. 


§  8G9.  MONKV  PAID.  387 

ceive<1  bv  ti.e  defenrlsnt  from  the  nlnintiff,  worrls  in  the  coTOplaint 
chiiiiring  fraud  may  he  reirariled  as  a  matter  of  inducement.  The 
fraud  need  not  be  proved.^  Rroney  fraudulently  received  from  a 
bank  may  be  sued  for  liefore  the  note  given  to  the  bonk  becomes 
due.*  Or  money  received  on  a  prize  drawn  by  fraudulent  means 
in  a  lottery.3  Where  a  third  person  receives  money  due  from  a 
debtor  to  Ids  creditor,  and  does  not  pay  it  over  to  the  creditor, 
in  consequence  of  which  the  creditor  brings  an  action  against  the 
debtor  and  recovers  his  demand,  the  debtor  may  sue  such  third 
person  to  recover  bacl<  tlie  former  payment.* 

§  8G8.  Essential  Allegations — Demand — Promise. — No 
demand  is  necessary.  It  is  inserted  here  only  as  an  example  of 
the  mode  of  alleging  demand  when  it  is  desired  to  fix  a  date  for 
the  commencement  of  interest.  An  allegation  of  promise  is  not 
absolutely  necessary,  as  the  law  will  imply  a  promise ;  but  as  an 
express  promise  is  almost  already  made  in  such  cases,  it  is  better 
to  state  it.  If  no  express  promise  is  made,  none  should  be 
plea<led.^  The  statute  of  frauds  prescribes  that  "every  special 
promise  to  answer  for  the  debt,  default,  or  miscarriage  of  an- 
other," is  void  if  not  in  writing.  But  it  need  not  be  alleged  in 
the  complaint  that  the  promise  was  "  in  writing."  Money  paid 
upon  a  contract  which  is  invalid  under  the  statute  of  frauds,  can 
not  be  recovered  back  so  long  as  the  other  party  is  ready  and 
willing  to  perform  on  his  part.® 

§  869.  By  One  having  Paid  Debt  of  Another,  to  be 
Repaid  on  Demand. 

Form  No.  US. 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  ....  day  of ,  18..,  at ,  he  paid 

to  the  use  of  the   defendant,  at   his   request,  and  on  condition 

that  the  same  should  be  repaid  on  demand,  the  sum   of 

dollars,  to  one  A.  B.,  for  one  quarter's  rent  of  the  house 
then  occupied  by  the  defendant  [or  state  the  character  of  the 
debt] . 

[II.  That  the  plaintiff,  on  the  ....  day  of  ,  18i.,  at 

,  demanded  payment  of  the  same  from  the  defendant.] 

III.  That  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[DkUAITD  or  JUDGMBNT.] 

'  Hftrpflnding    ▼.     Shoemaker,    37  '  See  Farron  v.    Sherwood,    17  N, 

Bulb.  270.  T.  227 ;  see.  also,  Beiry  v.  FurnHiides, 

•Gibson  V.  Stevens,  8  McLean,  551.  1  Biiij;.  338. 

»  Pntes  V.  Phalen,  2  How.  U.  S.  376.  •  Allia  v.  Read,  45  N.  Y.  142. 
«  Prie«t  V.  Price,  3  Keyes,  222. 


388  rOKMS  Ob'  COMPLAIN  Td.  §   870. 

§  870.  Essential  AlTegat'ong — Dem-'ncl — Request— The 
allegation  of  demand  is  not  in  general  necessary,  except  for  the 
purpose  of  fixing  the  time  for  interest  thereon.  An  averment 
of  request  is  necessary  in  a  com  laint  for  money  paid.^  But  it 
may  be  either  express  or  implied ;  and  if  implied,  the  facts  rais- 
ing it  must  be  alleged.* 

§  «71.  The  Same— To  be  Repaid  on  a  Specified  E ay. 

Fonn  Ao.  ^14, 

[TiTT.K.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of  ,  18...,  at ,  he 

paid  to  the  use  of  the  defendant,  and   at  his  request,  the  sum  of 

dollars,  to  one  A.   B.,,  the  amount  of   apromssory 

note  made  by  the  defendant. 

II.  That  defendant  promised  to  repay  said  sum,  with  interest, 
to  this  plaintiff,  on  the  day  of  .,  18... 

III.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Dkmand  op  Judgment.] 

§  872.  Liability  to  Repay,  how  Created. — The  defend- 
ant's legal  liability  to  pay  the  debt  which  the  plaintiff  has  paid 
is  an  essential  fact  in  an  action  to  recover  the  money  paid,  un- 
less there  be  an  express  promise  by  defendant  to  repay  the 
plaintiff.3  But  a  party  who  pays  an  illegal  claim,  without 
duress  of  person  or  of  goods,  or  fraud  on  the  part  of  the  claim- 
ant, although  he  makes  such  payment  under  protest,  can  not 
maintain  an  action  to  recover  back  the  money  so  paid.* 

§  873.  For  Repayment  of  Money  Paid  on  a  Reversed 
Judgment. 

Form  No.  815,  ■ 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  or  about  the  . . . .,  day  of  ,  18...  ,  judg- 
ment was   rendered  against  this  plaintiff  in  the   superior  court, 

county  of  ,  state  of    California,  in  an  action  wherein 

the  defendant  was  plaintiff,   and  this   plaintiff   was   defendant, 
for  the  sum  of dollars. 

II.  That  on  the day  of   18  ...,  at ,  the 

plaintiff  paid  to  the  defendant  the  sum  of  dollars,  in 

satisfaction  thereof. 

III.  That  afterwards,  on  the day  of  ,  18...,  by 

the  judgment  of  the  supreme  court  of  the  state  of  California, 

»2  ar«enl.  Ev.  98.  '2  Greenl.  Ev.  103,  sec.  114,  note. 

'  Durafurd  v.  Messiter,  6  Mau.  &  S.       'Plowur  v.  Lance,  69  N.  Y.  ii03. 
446 


§  875.  MONEY  PAID.  889 

said  first-mentioned  judjomnent  was  reversed  ;  but  tliat  no  part  of 
the  said  sum  paid  in  salisf action  tiiereof  lias  been  repaid  to  this 
plaintiff. 

[DrMAKD  of  .TtTDGMKNT.] 

5  874.    Essential  Allegations — When  Action    Lies. — 

Money  paid  on  a  reversed  or  suspended  judgment  may  be  recovered 
back.^  In  such  action  it  must  be  shown  that  the  judgment  was 
reversed ;  it  can  not  be  stated  as  erroneous.*  The  award  of  a 
venire  de  novo,  to  be  issued  by  the  court  below,  and  an  order  that 
the  costs  of  reversal  abide  the  event  of  the  suit,  are  no  bar  to  the 
action  to  recover  back  the  money  paid.'  An  action  lies  to  recover 
back  money  paid  under  the  award  of  a* public  officer,  when  such 
award  was  obtained  by  fraud  and  imposition,  and  where  the  pay- 
ment was  made  before  discovering  the  fiaud.* 

§  875    By  Broker,  for  Money  Advanced  on  Account 
of  his  FxincipaL 

Form  No.  S16, 

[TiTT-K.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  plaintiffs  are  partners,  doing  business  in  the  city 
of as  brokers,  under  the  firm  name  of  A.  B.  &  Co. 

II.  That,  as  brokers,  on  or  about  the day  of  , 

18  ....,  they  purchased  for  and  on  account  of  the  defendant,  and 
at  his  request,  the  following  goods,  wares,  and  mercliamlise  [des- 
ignate them],  under  an  agreement  that  said  goods,  wares,  and 
merchandise  were  to  be  paid  for  by  the  defendant  at  the  ex[)ira- 

tion  of  « days  from  the  day  of  purchase,  with  the  right  to 

the  defendant  to  pay  for  said  goods,  wares,  etc.,  at  any  Line  be- 
fore the  expiration  of  said days. 

III.  That  it  is  the  custom  of  brokers  in  such  cases  to  pur- 
chase the  goods  in  their  own  names,  without  disclosing  the 
name  of  their  principal,  and  in  case  of  the  failure  of  the  prin- 
cipal to  pay  for  the  same,  to  re^sell  the  goods  on  account  of  the 
principal. 

IV.  That  on  the day  of ,  18  ...,  at , 

plaintiffs  offered  to  deliver  said  goods,  wares,  and  merchMudise  to 
the  defendant,  and  demanded  of  him  payment  for  the  same. 

V.  That  on  or  about  the  day  of ,  18...,  the 

defen  lant  paid  to  the  plaintiffs,  on  account  of  the  said  purchase 
of  goods,  wares,  etc.,  dullurs. 

ir^.tin  V.  R-n'nolds.  18Cal  276.  627;  Wbife  v.  ■Wsrd.  9  .Tohns.  282; 

»  limik   of  WiisliiiijrUiit   V.   Bank  of  K.'lli  v.  Sililoss,  6  liail).  80;*. 

TJniteilStKies,  4Cranch  C.  C.  8ti;  com-  *  Siuriies  v.  Allis,  10  Weiifl.  355. 

pare    M>nniii«^l   v.  Ki^gs.  .3  Id    l(j7;  ♦MitiiijHn   v.  Phcenix    UMnk,  38  N. 

paiik  uX  VVtiBtiiii^tou  V.    ^tiitle,   4  IcL  Y.  i^;  niuJn^uigsaiutiUMaitt,  7  iiuoW.  20. 


390  rOBMti  OF  COMFLAlNXa  §  876. 

VI.  That  at  the  expiration  of  the  said days,  the  de- 

feiKlaiit  failed  to  pay  the  balance  due  for  said  goods,  and  the 
plaintiffs  paid  for  the  same,  and  to  reimburse  themselves,  after- 
wards, on  the   day  of   ...,  18..,  sold  the  same  on 

his  account,  at  [state  the  pricej.  And  that  there  is  now  due 
and  unpaid,   from  the   defendant  to  the  plaintiff,   on   account 

thereof,  the  sum  of   dollars,  and  interest  thereon  from 

the  date  last  aforesaid. 

[D  KM  AND   OT  JUDGMKNT.^ 

§  876.  Essential  Allegations — Custom— Demand.— It  is 
well  to  set  forth  the  custom  of  brokers  in  such  transactions.^  A 
custom  of  insurance  brokers  to  take  dividends  declared  by 
mutual  companies  in  lieu  of  all  other  compensation,  is  bad.' 
The  plaintiff  must  aver  that  he  demanded  payment  of  the  price, 
and  offered  to  deliver  the  goods.' 

§  877.  For  Repayment  of  Deposit  on  Farchase  of  Real 
Estate. 

Form  No.  217, 

The  plaintiff  complains,  and  alleges: 

I.  That   on  the day   of ,    18..,  the  plaintiff 

and  the  defendant  made  their  contract  in  writing,  subscribed 
by  them,  whereby  it  was  mutually  agreed  that  the  said  defend- 
ant should  sell  to  this  plaintiff,  and  the  plaintiff  should  buy 
from  the  defendant,  certain  real  estate    [describe  it],   for  the 

sum  of  dollars,  to  be  paid  by  the  plaintiff;  that  the 

defendant  should  make  a  good  title  to  the  said  premises,  and 

deliver  a  deed  thereof  on  the  day  of  ,  18..; 

and  that  the  plaintiff  should  thereupon  pay  to  the  said  defend- 
ants the  said  purchase  money.  I 

II.  That  the  plaintiff,  as  a  security,  as  well  for  the  perform- 
ance of  said  agreement  on  his  part,  as  to  secure  a  performance 
thereof  on  the  part  of  the  defendant,  then  and  there  deposited 

in  the  hands  of  said  defendunt  the  sum  of dollars,  as 

part  of  said  purchase  money,  to  be  to  and  for  the  use  of  the 
defendant,  and  to  be  retained  by  him  on  account  of  the  pur- 
chase money,  if  the  plaintiff  should  com()lete  his  purchase  and 
receive  the  deed;  but  to  be  to  and  for  the  use  of  the  plaintiff, 
and  to  be  returned  to  hitn.  if  the  defendant  should  fail  to  fullill 
his  agreement,  to  give  a  deed  at  the  time  and  pumuaiil  to  the 
agreement. 

1  ^VIiiteTionsft  V.  Afnore,  1.<?  AVih  T*r  142. 

«  VI  inne-^ota  C.  R.  R.  Co.  v.  TVT..rjEr-Ti.  52  Barb.  217, 

8 JlLuiwIu  v.  Hauiiliuii,  6  Uuer,  2^1. 


§  878.  MOi^EY  PAID.  891 

III.  That  he  has  always  been  ready  and  willing  to  do  and 
perform   everything  in  the   agreement  contained    on    his  part, 

and   on  the  said day  of ,  18...,  was  ready  and 

willing,  and  offered  to  the  defendant  to  accept  the  deed  of  the 
premises  pursuant  to  the  agreement,  and  to  pay  co  him  the 
balance  of  the  purchase  money  due  therefor. 

rV.  That  the  defendant   did   not    on    the    said day  of 

,18 ,  nor  at  any  time  since,  give  him  a  deed  of  the 

premises  pursuant  to  the  agreement,  but  refused  to  do  so. 

V.  That  on   the day  of ,    18  ......  he    demanded 

of  the  defendant  payment  of  the  sum  of dollars,  de- 
posited with  him  as  aforesaid. 

VI.  That  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Jxtdsmknt.] 

§  878.  When  Action  Lies. — Upon  failure  of  the  vendor  to 
be  ready  with  the  deed,  and  convey  a  good  title  on  the  day 
agreed,  the  vendee  may  rescind  the  contract,  and  recover  back 
the  deposit ;  ^  and  a  demand  of  the  deposit  is  a  rescission.^  And 
if  on  demand  the  vendor  positively  refuses,  no  further  demand 
is  necessary. 3  But  if  by  the  laches  of  the  vendee  the  remedy  at 
law  is  barred,  and  the  right  to  a  specific  performance  is  forfeited, 
there  can  be  no  recovery  of  what  has  been  paid  on  the  contract.'* 
Thus,  upon  a  sale  by  auction,  if  the  vendor  fails  to  complete  the 
contract,  the  deposit  may  be  recovered  from  the  auctioneer  as 
stakeholder;^  and  if  he  fail  to  disclose  his  principal,  he  is  liable 
for  damages  as  well.^  But  where  a  party  makes  a  purchase  from 
an  innocent  agent,  who  afterwards  parts  with  the  money  of  his 
principal,  and  it  afterwards  transpires  that  such  purchase  avails 
the  purchaser  nothing,  no  right  of  legal  complaint  lies  against 
the  agent.'  So,  also,  where  a  purchaser  at  a  sale  under  a  decree 
in  foreclosure  suit,  which  decree  was  void  because  grantee  of 
the  mortgagor  was  not  made  a  party,  an  action  will  not  lie  to 
recover  back  the  money  paid  them  on  his  bid.^  But  where 
plaintiff  bought  a  lot  and  paid  taxes  thereon,  and  afterwards 
discovered  that  the  defendant   had   previously  sold  it,  and  the 

l.Iudson  V.  Wftss,   11   Johns.  525;  «  Hanson  v.  Robardeau,  Penke's  N. 

Sut;.l.  on    Ven.u.rs,   369;    Van    Hfu-  P.  (J.    161;    Kent's   Corn.    »i30,    631; 

thuvsen    v.    Ciapser,    8   Joints.  267;  Mauri  v.    Heffernan,   13   Johns.    58; 

Doininick  V.  Sayre,  3  Swidt  555.  Bank    of  Kochester  v.    Monu-ath,    1 

»  I(i.  Dho.  40.i;  Mills  v.  Hui»w  20  Wend. 

«  \i\  ood  V.  Goodrioh.  9  Wend.  68.  481. 

«  Finch  V.  Parker,  49  N.  Y.  1.  '  Engpls  v  HpRtly.  5  <"»].  1?5 

'  l^ee  V.  Miinn.  1  .VLu.re.  481  ;  Cur-  *  Bugys  v.  Hargruve,  lbCi»l.659. 
ling  V.  bhulUuwurlb,  t>  Bing.  121. 


392  FORMS  OF  COMPLAINTS.  §  879. 

defendant  knew  of  this  former  conveyance,  and  that  the  money 
was  fraudulently  obtained,  the  procurement  by  defendant  of  a 
full  title  to  the  lot  will  not  bar  the  plaintiff 's  recovery  of  the  pur- 
chase money  and  interest. ^  And  where  the  sale  of  a  city's  prop- 
erty was  without  authority,  the  plaintiff  is  not  required  to  sur- 
render the  property  before  bringing  an  action  for  recovery  back 
of  the  purchase  money.*  He  is  not  required  to  transfer  either 
the  property  or  the  possession  to  the  corporation  before  the 
commencement  of  the  action. ^ 

§  879.  Essential  Averments— Demand — Offer  to  Per- 
form.— To  recover  back  purchase  money  on  the  ground  of  a 
breach  of  covenant,  the  complaint  must  allege  a  breach  of  cove- 
nant.^ It  is  necessary  for  the  plaintiff  to  aver  his  readiness  and 
willingness  to  fulfill  at  the  time  and  place  agreed.^  But  the 
purchaser  is  not  bound  to  make  an  absolute  tender  of  perform- 
ance ;  a  conditional  offer  to  perform  is  sufficient.®  An  offer  to 
perform  is  necessary;  mere  readiness  is  not  sufficient.'  The 
bringing  of  the  action  is  not,  however,  a  sufficient  demand.  A 
conveyance  should  be  demanded  and  refused,  and  a  reasonable 
time  allowed  for  its  execution.^ 

§  8«0.  Interest  when  Allowed. — ^Tbe  plaintiff  may  recover 
interest  on  the  deposit  money  recovered,  from  the  time  of  de- 
mand ;9  and  on  money  in  his  hands  lying  idle,  ready  to  com- 
plete the  contract,  i** 

§  881.    To  Recover  Back  a  Wager. 

Form  No.  218. 

[TrTT.K.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of    ,    18...,  at  , 

the  plaintiff  deposited  in  the  hands  of  the  defendant,  as  stake- 
holder,     dollars,    which    was    to    abide   the   event  of   a 

wager  made  between  the  plaintiff  and  one  A.  B.,  on  the  result 
of  [here  state  what,  as  election,  race,  or  otherwise]. 

II.  That  such  wager  was  in  violation  of  the  statute  entitled 

>  AlvnroT!  V.  Brdnnan,  7  Cftl.  50!?.  '  Lestor   v.    Jewptt,  11   N.  Y.  453; 

'  M<Oittckea  v.  Saa  Fraiicisco,  16  Willimus  v.  Hfaley,  H  Ohii.  :^tji;  Jolia- 

Cal.  591.  son  v.  VVvgnnt,  11   Wend.  4^. 

«  Herzo  v.  San  Francisco,  83  OaL  «  Fuller  v.    Hubbard,    6    Cow.  18; 

184.  Hack.itt  V.  Huson,  3  Wend.  249 ;  Foote 

*  Willifl  V.  Primm,  21  Tkx.  3R0.  v.    West,    1    Den.  541;  Lulwi^ler    v. 

»  Porter  v.  Kose,  12  Johns.  209.  Linnell,    12    Barb.  512.     To  the  con- 

•Rcibb  V.    Montgomery,  20  .Johns,  traryare:  Drigtfs  v.  Dwiaht,  17  Wend. 

15;  West  v.  Enimona,  5  Id.  179;  Top-  71  ;   Klvnn  v.  MoKeon,  H  Dner.  20!?. 

ping  V.  lioot,  5  Cow.  404;    Kiiwson  v.  •  F'ii{pil)af  v.    PHrl-y.  7  Tmini..  .592. 

Johns  .ti.   1    Kaxt,  203;    Bellinger  v.  ^  8heiry  V.    Oke,  3'  Uowl.   Pr.  0. 

KuUi,  ti  Barb.  273.  849. 


§  883.  MONEY  PAID.  393 

•'An   act,"  etc.  [title  of  act],   passed  ,  and  the   acts 

amentlatory  thereof  and  supplementary  thereto. 

III.  That  no  decision  has  as  yet  been  ren^lered  upon  said 
election  [race  or  otherwise]  ;  and  that  the  defendant  still  re- 
tains said  money  as  stakeholder. 

IV.  That   on  the  day  of  ,  18..,  the  plaintiff 

demanded  the  return  of  said  money  of  the  defendant. 

v.  That  the  defendant  has  not  returned  or  paid  back  the 
same.^ 

[DkMANT)  05-  JUDGMBNT.] 

§  882.  When  Action  Lies. — At  common  law,  a  wager 
made  in  respect  to  matters  not  affecting  the  feelings,  interest, 
or  character  of  third  persons,  or  the  public  peace,  or  good 
morals,  or  public  policy,  is  valid,  and  can  be  enforced.  In 
many  of  the  states  statutes  have  been  passed  for  the  discour- 
agement of  gaming,  which  gave  a  right  of  action  for  money 
lost  at  play  or  on  a  wager.  In  California,  where  an  illegal 
wager  is  made,  the  parties  to  it  may,  before  the  wager  is  de- 
cided, recover  their  stakes  from  each  other,  or  from  the  stake- 
holder. But  after  the  money  has  been  lost  or  won,  and  the 
result  generally  known,  neither  party  can  recover  from  each 
other,  nor  from  the  stakeholder,  if  he  has  paid  over  the  money. 
In  such  state,  betting  on  a  horse-race  is  against  public  policy, 
and  included  within  the  foregoing  rule.^  There  seems  to  be  no 
satisfactory  reason  for  the  distinction,  as  made  by  the  Knglish 
cases,  between  actions  directly  between  the  parties  to  the  wager 
and  actions  between  the  loser  of  a  bet  and  the  stakeliolder,  if 
one  has  been  emplo3'ed.'  But  where  an  act  makes  wagers  on 
horse  races  and  the  holding  of  stakes  criminal  offenses,  one 
who  has  deposited  money  with  a  stakeholder  can  not  recover  it, 
although  the  race  has  not  come  off.* 

In  Kansas,  money  placed  in  the  hands  of  a  stakeholder,  on 
an  illegal  bet  on  elections,  may  be  recovered  by  ti)e  depositor, 
on  demand,  at  any  time  before  it  is  paid  over  to  the  winning 
party. ^  In  Michigan,  money  lost  at  play  or  on  a  horse-race, 
ma}'  be  recovered  as  money  had  and  received.^ 

§  883.  Essential  Allegations — Demand. — An  ar-tion  fore- 
cover  back  money  lost  at  play,  is  not  an  action  for  a  peuuity  or 

'  Fiirftnothf^rform, ponstilt  O'Mnley  '.Tohngon  v.  TvhospH,  37  Cal.  670. 

V.  Kf'e-'e.  H  Hnrb.  658;  Bolts  v.  Bache,  ♦Sulphin  v.  Cn.zier,  H  Vi<i,,m.  4«2; 

14  Ahb.  Pr.  279.  see  Bybee.v.  Burbank.  2  Uretron.  295; 

*  .lohnooFi   V.    Rnsppll    87    Cal.  672;  *  Hnvnolds  v.    McKinnev,   4    Khhs. 

Fil   V    KifiH.  43   Id.  615;  Giidle^  V.  94;  .I»^nnings  v.  K»'yii..|ris.  LI.  110. 

Duni,  57  id.  78.  *  Graiit  v.  Hamitiuu,  3  MuLean,  100. 


394  FORMS  OP  COMPLAINTS.  §  884. 

forfeiture.*  The  complaint  in  such  action,  if  founcled  on  statute, 
must  be  special,  setting  out  the  facts,  and  bringing  the  plaintiff 
within  the  statute  by  force  of  which  he  claims  to  recover.^  The 
complaint  is  obnoxious  to  a  motion  tliat  it  be  made  more  definite 
and  certain,  unless  it  states  the  facts  necessary  to  show  clearly 
under  which  section  of  the  statute  the  action  is  brought.^  As 
the  remedy  in  such  action  is  given  by  statute,  the  plaintiff 
must  by  his  comi)laint  bring  himself  within  its  provisions.*  The 
count  in  a  complaint  stating  that,  on  a  day  named,  the  defend- 
ant received  a  specified  sum  belonging  to  or  on  account  of  the 
plaintiff,  and  which  is  now  due,  being  contrary  to  the  provisions 
of  the  statute  designating  it,  is  not  demurrable  for  not  stating 
facts  sufficient  to  constitute  a  cause  of  action. ^  An  action 
against  a  stakeholder,  to  recover  money  deposited  on  an  illegal 
wager,  may  be  maintained  without  previous  demand,  when  the 
money  has  been  paid  over  before  the  action.^  In  such  an  action 
interest  is  recoverable  from  the  time  of  demand,  e.  g.,  from  the 
commencement  of  the  action.'  In  New  York,  in  an  action  to 
recover  money  lost  at  play,  since  the  statute  gives  the  action 
only  for  losses  exceeding  twenty-five  dollars  at  one  sitting,  and 
requires  it  to  be  brought  within  three  months  after  payment,  the 
defendant  is  entitled  to  require  the  plaintiff  to  specify  in  his 
complaint  the  amount  lost  at  each  sitting,  and  the  time  of  pay- 
ment. It  is  not  sufficient  that  these  facts  might  be  called  forth 
by  requiring  a  bill  of  particulars.** 

§  884.  By  Landlord,  against  Tenant,  for  Repayment  of 
Tax. 

Form  No.  219, 

[TiTT.F!.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of ,  18...,  at , 

the  plaintiff   and  the   defendant   entered  into  an  agreement,  of 
which  the  following  is  a  copy  [set  forth  lease  or  agreement]. 

II.  That  there  was  duly  levied  and  assessed  u[)on  said  prem- 
ises for  the  year  18...,  and  while  the  covenants  of  the  aforesaid 
agreement  were  in  full  force,  and  the  defendant  in  possess  on 

of  the  premises  b}'  virtue  thereof,  a  tax  of dollars, 

which  the  defendant  neglected  to  pay. 

1  Arrietfi  v.  Morrissey,  1  Abb.   Pr.,  '  Botts  v.  BHobp,  9  Roaw.  614. 

N.  S.,  4:!9.  «  Huckniau    v.    ruolier,    1    N.    T. 

'  15  J.)hns.  5;  Moran  v.  Morrissey,  892. 

18  Abh.  Pr.  131.  '  Rtickman  v.  Pitcher,  20  N.  Y.  9; 

'Ariieta  v.  Morrissey,  1  Abb.  Pr.,  18  Barb.  556. 

N.  8..  489.  *  VrrieMv  V.  Moniasey,  1  Abb.  Pr., 

♦  riM.gwurthv  V.  Broomley,  29  How.  N.  S.,  liii^. 
Pr.  Sdl. 


§  887.  MONEY  TAID.  895 

III.  That  by  reason  thereof ,  the  plaintiff  svns,  on  the . 

day    of ,    18...,    comijelled    to   pay  the    snid  sum  of 

dollars,    with  dollars    arrearasjes  oi'   iiiierest, 

and   per  cent,  amounting  in  the  whole  to  

dollars. 

IV.  That  defendant  has  repaid  no  part  thereof  to  plaintiff. 

[Demand  of  J  uugmkn  r.] 

§  885.  Demand. — The  lessor's  right  of  action  is  perfect 
without  a  previous  demand  of  the  tenant.^ 

§  886.  Illegal  Taxes. — In  an  action  to  recover  bnck  illegal 
taxes,  it  is  not  sufficient  to  aver  that  the  valuation  of  the  prop- 
erty is  "  unjust,  disproportion&d,  and  unequal."  The  complaint 
must  state  specifically  wherein  it  is  so.* 

§  887.  Against  Carrier,  to  Recover  Money  in  Excess 
for  Freight. 

Form  No.  tSO, 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at ,  the 

defendant  agreed  with  the  plaintiff  to  transport  from  

to  ,  and  to  deliver  to  him  certain  goods  of  the  plaintiff, 

for  tlie  sura  of dollars. 

II.  That  the   said   sum  of dollars  was  a  reasonable 

sum  to  be  paid  therefor. 

III.  That  the  defendants  entered  upon  the  performance  of 
said  agreement,  and  transported  said  goods. 

IV.  That  on  the  arrival  of  said  goods  the  plaintiff  demanded 
said  goods  of  the  defendant,  and  was  reaily  and  willing,  and 
off  (.red  to  pay  to  the  defendants  for  transporting  the  same,  the 
said  sum  of  dollars. 

V.  That  the   defendant  refused  to  deliver  said  goods  to  the 

plaintiff,  unless  he  would  pay  to  the  deleudaut  dollars 

for  transporting  tlie  same. 

VI.  That  on  the day  of ,  18...,  at 

the  plaintiff  paid  dollars   to   the  defendant   to  obtain 

delivery  of  said  goods,  which  sum  he  paid  under  protest,  and 
expressly  denying  the  defendant's  right  to  claim  it,  and  other- 
wise performed  all  the  conditions  of  said  agreement  on  his  part. 

VLI.  That  the  defendant  has  not  repaid  the  same,  nor  any  part 

thereof. 

[Dbmand  of  Judgment.] 

'  GHTner  v.  TTflnnnli,  6  DiiPr,  262.         5  Hun,  421 ;  Dewey  v.  Board  of  Sup. 
«  (iuy  v.   V\  aslibuni,  23  Cal.    Ill;     etc.,  2  Id.  892. 
see  also  Dietrich  V.  Mayor  ol'  K.  If., 


896  FORMS  OF  COMPLAINTS.  §  888. 

§  88«.  Concurrent  Acts. — Delivery  of  freicrht  by  the  car- 
rier, and  payment  of  freight  money  by  the  owners,  are  concur- 
rent acts,  and  neither  party  is  bound  to  perfoira  his  part  of  the 
shipping  contract  unless  the  other  is  ready  to  perform  ihe  correla- 
tive act.i 

§  889.  To  Recotrer  Back  Freight  on  Failure  of  Car- 
riage. 

Form  No.  S21. 

[TlTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of  ,  18...,  at  ,  the 

defendant   agreed  with   the  plaintiff  to    transport  from  

to ,  and  to  deliver  to  him  certain  goods  oi'  the  plaintiff, 

for  the  sum  of dollars. 

II.  That  on  tlie  day  of  , ,  18  ..,  the  plaintiff  paid 

to  the  defendant   the    sum   of    dollais,   as    an   advance 

payment  for    said   transportation,  and  otherwise  performed  all 
the  conditions  of  said  agreement  on  his  part. 

III.  That  the  defendant  has  not  transported  said  goods,  nor 
delivered  the  same  to  the  plaintiff. 

IV.  That  on  the  day  of  ,  18...,  at  ,  the 

plaintiff  demanded  of  the  defendant  repayment  of  said  sum  of 

dollars  advanced. 

v.  That  he  has  not  repaid  the  same. 

[Demand  OF  JutiQMKNT.3 

§  890.  When  Action  Lies — In  General. — Where  money  is 
paid  by  one  person,  in  consideration  of  an  act  to  be  done  by 
another,  and  the  act  is  not  performed,  the  money  so  pnid  may 
be  recovered  back.^  Contracts  for  carrying  freight  form  no  ex- 
ception to  the  general  law,  that  where  money  is  pnid  for  an  act 
to  be  done  by  another,  and  the  act  is  not  done,  the  money  may 
be  recovered  back.^  Thus  freight  paid  in  advance  for  transpor- 
tation of  goods  is  to  be  repaid  in  the  event  of  their  not  being 
carried,  unless  there  be  a  special  agreement  to  the  contrary.'* 
This  rule  is  not  subject  to  any  usage  to  the  contrary.^  Ad- 
vanced freiglit  can  be  recovered  back  by  the  charterer,  in  case 
of  the  loss  of  the  ship,  or  non- performance  of  the  voyage,  whether 
by  fault  of  the  master  or  not.^ 

*Frothinghflm  V.  Jenkins,  1  Cal.  43.  678;  GriffCfg    v.  Austin.  8    Pick.  20; 

'  Rfiimv.  Cross,  6  ('h1.31;  see  Tay-  Harris  v.   I'a nl.  4  IM.  H.  2o9,  656;  8 

lor  V.  Beavers,  4  E.  D.  Smith,  216.  Kent's  Com.  226. 

»  RciiiH  V.  Cross.  6  Citl.  29.  '  Emt-rv  v,  Dunbar.  1  Daly,  408. 

*Plielps    v.   Willirtmsou,  6    Sandf.  •  Lawuon  v.  Worms,  0  (Jai,  ao5. 


§  893.  MONEY  PAID.  397 

§  891.  By  Surety  against  Principal  for  Payment  on 
Appeal  Bond. 

Form  No.  S22. 

[TiTLR.J 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  ....  day  of ,  18...,  at ,  a  judg- 
ment was  duly  given  and  made  in  the court  of , 

against   the  defendant,  in  favor  of   one  ,  for 

dollars,  from  which  the  said  defendant  appealed. 

II.  That  on  the day  of  ,  18...,  at  the  reqnest  of 

defendant,    the  plaintiff     executed    an  undertaking,    a   copy  of 
which  is  hereto  annexed. 

III.  That  on  the  ....  day  of ,  18...,  the  said  judg- 
ment was  affirmed  by  the  supreme  court  of  this  state,  with 
dollars  costs  and  damages. 

IV.  That  on  the  ....  day  of ,  18...,  the  plaintiff 

paid dollars,  upon  the  said   undertaking,  to   the   said 


V.  That  the  defendant  has  not  paid  the  same  to  plaintiff,  nor 
any  part  thereof. 

[DkMAND  of  JrjDGMWNT.] 

[Copy  of  the  undertaking.] 

§  892.    When    action   Lies — Essential  Allegations. — 

Unless  there  is  a  special  promise,  the  defendant's  legal  liability 
to  pay  is  an  essential  fact.^  But  in  a  suit  by  a  surety  against 
his  principal  to  recover  back  money  paid  by  him  on  a  judgment 
against  him  for  the  debt  of  his  principal,  a  transcript  of  the 
judgment  need  not  be  annexed  to  the  complaint.^  And  where  a 
defendant  undertook  to  pay  any  judgment  which  M.  might  re- 
cover against  L.,  and  the  plaintiff  undertook  to  save  him  harm- 
less from  such  payment  to  the  extent  of  five  hundred  dollars, 
which  sum  he  deposited  with  the  defendant  for  that  purpose, 
the  relation  of  principal  and  surety  did  not  exist  between  them. 
Under  these  circumstances,  the  deposit  could  not  become  the 
money  of  the  defendant  till  he  had  paid  the  judgment,  and  the 
plaintiff  is  entitled  to  recover  the  money  on  the  payment  or 
release  of  the  judgment.' 
§  893.    For  Repayment  of  Advances  on  Services. 

Form  No.  213. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges : 

^2  Greenl.  Ev.  103.  cipals  and  eo-suretles.    are  discussed 

'Hiirker    v.  Giidewell,  23  Ind.  219.  in  1  Pars,  on   Cont.  33;    Pars.  Mer. 

8  Solomon    v.  Reese,   34     Cal.   85.  Law,   39 ;  Baker  v.   Martiii,  8  Barb. 

The  rights  of  sureties,  as  against  prin-  634. 


398  FORMS  OF  COMPLAINTS.  §  894. 

T.  That   on  the   day   of ,   18..,  at , 

the  [)luintiff  and  defendant  entered  into  an  agreement,  whereby 
the  plaintiff  agreed  to   hire,  and  the  defendant  agreed  to  render 

bis  services  to  the  plaintiff  as  ,  for  the  term  of , 

in  consideration  of  the  sum  of dollars,  to  be  paid  therefor 

by  the  plaintiff. 

II.  That  on  the day  of  ,  18..,  at ,  the 

plaintiff  paid  to  the  defendant  as  an  advance  for  his  services,  to 
be  rendered  thereafter,  in  pursuance  of  said  agreement,  the  sum 
of dollars. 

III.  That  the  defendant  wholly  neglected  and  refused  to  render 
said  semces,  although  demanded  by  the  plaintiff  so  to  do. 

IV.  That  the  defendant  has  not  repaid  the  same,  nor  any  part 

thereof. 

[Duma NT)  of  Judgment.] 

§894.  When  Action  Lies — Demand.— The  acceptance 
of  an  order  to  pay  money,  to  be  deducted  from  a  payment  to  be- 
come due  under  a  contract  for  work  to  be  performed,  is  a  promise 
to  the  pa^'ee,  and  the  payee  may  recover  thereon  under  the  com- 
mon money  counts.^  Where  an  agreement  has  been  rescinded 
on  a  contract  for  services,  or  performance  so  neglected  as  to  en- 
title the  plaintiff  to  rescind,  a  demand  is  not  necessary  to  enable 
the  plaintiff  to  recover  back  advances. ^  If  money  has  been  paid 
or  services  rendered  in  the  performance  of  the  conditions  of  a 
void  contract  by  one  party  thereto,  and  the  other  party  fails  to 
voluntarily  perform  on  his  part,  the  injured  party  has  no  remedy 
at  law  upon  the  contract.  He  may,  however,  under  such  circum- 
stances, disaffirm  such  contract,  and  maintain  his  action  at  law  to 
recover  back  money  so  paid,  or  the  value  of  services  so  rendered.' 

§  895.  Sufficient  Allegations, — In  a  complaint  for  money 
expended  and  services  performed,  technical  words,  the  meaning 
of  which  is  long  established,  rather  than  phrases  of  doubtful 
import,  should  be  used.  The  complaint  ought  to  state  that  the 
money  was  expended  for  the  use  and  benefit  of  defendant,  and 
at  his  instance  and  request.  So,  in  regard  to  the  performance 
of  lahor.^  The  plaintiff  must  allege  and  prove  non-performance.* 
And  if  the  defendant  has  rescinded,  plaintiff  need  not  prove  readi- 
ness to  pay  the  whole  contract  price.^ 

^  Qidn  V.  Rnnford,  1  Hill,  84;  Wes-  "  King  v.  Brown,  2  Hill,  485;   Bald- 
ton    V.    Buker.    12  Johns.    278;    17  win  v.  Palmer,  10  N.  Y.  234;   Fuller 
Wend.  206;  McClellan  v.  Anthony,  1  v.  R.'ed,  88  Cal  99. 
Edm.  284.  *  Huguetv.  Owen,  1  Nev.  464. 

'  Kaymond  v.   Besrnard,   12  Johns.  •  Wheeler  v.  Bonrd,  12  Johns.  868. 

274 ;  and  see  Utica  Bank  T.  Yau  Gie-  *  Main  v.  King,  8  Barb.  635. 
son,  18  Id.  485. 


§  898.  SEKVIOES,  WORK,  AND  LABOR.  399 


CHAPTER  XII. 


FOR  SERVICES,  WORK,  AND  LABOR.  ; 

§  896.    For  Services  at  a  Fixed  Price. 

Form  No.  224. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  between  the   day  of   ,    18...,  and   tL^j 

day  of ,  18...,   plaintiff  rendered  services  to  the 

defendant,  at   his   special  instance   and   request,  in  the  capacity 
of  [clerk  or  otherwise]. 

II.  That  for  said  services  the  defendant  promised  to  pay 
plaintiff  a  salary  at  the  rate  of   Lfifieen  dollars  per  week]. 

III.  That  the  defendant  has  not  paid  the  said  salary  [or  that 
no  part  of  said  salary  has  been  paid,  except,  etc.] 

[Demand  of  Judgment.] 

§  897.  When  Action  Lies.— The  action  for  work,  labor, 
and  services  lies  upon  the  contract.  If  nothing  remains  to  be 
done  by  the  contractor  but  payment  of  the  stipulated  price, 
plaintiff  may  rest  upon  the  duty  raised  by  the  law  on  the  part 
of  defendant  to  pay  the  price  agreed,  or  he  may  plead  the  ex- 
p  ess  agreement,  and  allege  performance.^  Or  excuse  for  non- 
performance, and  allege  part  performance, ^  if  the  contract  has 
been  abandoned  by  agreement,  or  rescinded  by  the  wrongful 
act  of  a  party,  or  its  execution  is  incomplete  by  reason  of  an 
excuse.^  Where,  however,  there  has  been  a  written  contract, 
it  must  be  produced  on  the  trial,  or  its  absence  accounted  for.* 
Where  by  the  terms  of  a  contract  parties  performing  labor  under 
it  are  to  be  paid  at  the  end  of  each  month,  for  the  labor  per- 
formed to  that  time,  and  they  are  not  paid  at  the  stipulated 
time,  and  are,  by  reason  thereof,  compelled  to  abandon  the 
work,  they  have  the  right  to  do  so,  and  are  entitled  to  recover 
for  the  work  done  and  not  paid  for,  pro  tanto,  at  the  contract 
price.* 

§  898.  The  Same— Services  of  a  Substitute.— The 
plaintiff  may  recover  for  work  and  services  done  by  his  substitute 

>  Farron  v.  Sherwood,  17  N.  Y.  227.  19  Id.  205 ;  Smith  v.  Smith,  1  Sandf. 

«  VVolte  V.  Howes,  20  N.  Y.  197.  206 ;  Ladue  v.  Seymour,  24  Wend.  60 ; 

»  Farron  v.     Sherwood,    17   N.  Y.  Sherman  v.  N.  Y.  Central   K  R,  22 

227;  Wolfe  V.  Howes,  20  Id.  197.  Barb.  239;  Adams  v.   The  Mayor,  4 

«  Clark  V.  Smith,  14  Johns.  326,  and  Duer,  295. 

cases  there  cited;  Champlin  v.  But-  '  Dobbins  v.  Higgins,  78  HI.  440. 
ler,  18  Id.  169;  Wood    t.  Edwards, 


400  FOEMS  OP  COMPLAINTS.  §  899, 

under  a  contract  made  by  defendant  with  liim,  provided  tliat  the 
services  of  a  particular  person  were  not  contracted  for,  and  tliat 
no  other  person  could,  under  the  contract,  fill  the  place  of  the 
employee.^  Under  a  general  complaint  for  work  and  labor,  the 
plaintiff  may  recover  on  proof  of  a  special  contract  fully  com- 
pleted.2  Where  there  is  a  special  contract  between  principal 
and  agent,  by  which  the  entire  compensation  is  regulated  and 
made  contingent,  there  can  be  no  recovery  on  a  count  for  a 
qitantum  meruit.^ 

§  899.  Service  for  the  Public. — Where  a  service  for  the 
benefit  of  the  public  is  required  by  law,  and  no  provision  for  its 
payment  is  made,  it  must  be  regarded  as  gratuitous^  and  no 
claim  for  compensation  can  be  enforced.* 

§  900.  Entire  Contract. — Where  a  person  agrees  to  work 
for  a  certain  period,  at  a  certain  price,  or  to  perform  certain 
services  for  such  an  amount,  he  can  not  break  off  at  his  own 
pleasure,  and  sue  upon  the  contract  for  the  work  so  far  as  he 
has  gone.^  In  such  a  case,  performance  is  a  condition  prece- 
dent to  payment.^  In  a  suit  to  recover  for  services  for  half  a 
year,  under  a  contract  to  work  a  whole  year,  plaintiff  having 
quit,  it  requires  slight  evidence  of  assent  or  agreement  to  ap- 
p  rtion  the  contract  and  allow  plaintiff  to  recover.'^  A  contract 
may  be  entire  where  payment  is  stipulated  to  be  made  monthly, 
where  a  note  was  to  be  given  by  the  employer  for  the  last  four 
months'  labor  yet  to  be  done,  on  a  contract  of  eight  months' 
duration. 8  Where  one  is  employed  by  another  under  a  con- 
tract, at  a  stated  salary,  payable  monthly  or  at  a  stated  time, 
as  clerk  or  business  agent,  and  the  employee  neglects  his  busi- 
ness, the  employer  is  not  precluded  from  suing  for  dam  xges  for 
neglect,  by  payment  in  full  of  employee's  wages,  or  by  not 
setting  up  a  counter-claim  in  an  action  by  employee  for  his 
wages. ^  Where  a  party  contracts  for  a  consideration  in  money 
to  find  a  purchaser  for  certain  lands,  it  is  a  contract  of  employ- 
ment, and  not  a  contract  for  the  sale  of  land  within  the  mean- 
ing of  the  statute  of  frauds.^"  But  where  a  part  of  the  remuner- 
ation was  to  be  land,  the  contract  was  entire,  and  if  void  as  to 
part  under  the  statute  of  frauds,  is  void  in  toto,  and  could  not 

*  Leet  V.  Wilson,  24  Cal.  898.  •  Hutchinson    v.  Wetmore,  2    Cal. 
«  Hurst  V.  Litchfield,  39  N,  Y.  377.    811. 

»  Marshall   v,  Baltimore  and   Ohio        "  Ho^an  v.  Titlow,  14  Cal.  255. 
R.  R.  Co.,  Hi  How.  (U.  S.)  314.  »  Hutchinson    v.    Wetmore,   2  Cal. 

*  Anderson  v.  i3d.    Com.,  25  Ohio    811. 

St.  13.  »  Stoddard  v.  Treadwoll,  26  Cal.  294. 

»  Hutchinson  v.  Wetmore,  2  Cal.  31L        "  Heyn  v.  Philips,  37  CaL  529. 


§  903.  SERVICES,  WORK,  AND  LABOR.  401 

be  enf  )rced.^  But  if  services  have  been  performed  on  such  a 
voi<l  c  )ntraet,  the  injured  party  may  disaffirm  the  contract,  and 
maintain  liis  action  at  law  for  services  rendered.^ 

§  901.  Essential  AUsgations — Demand. — A  declaration 
for  labor  done  or  services  performed  generally,  without  speci- 
fying th^m  in  particular,  is  good.'  And  where  a  complaint  for 
work,  labor,  anl  services,  alleged  an  indebtedness  in  a  sum 
certain  therefor,  but  omitted  to  allege  specially  the  value  of  the 
same  or  a  promise  to  pay;  and  defendant,  without  demurring, 
put  in  an  answer  denying  indebtedness,  admitting  services  per- 
formed, and  setting  up  payment  in  full,  and  there  was  a  verdict 
for  plaintiff;  whatever  the  defects  of  the  complaint  may  be, 
they  were  cured  by  defendant's  pleading  and  by  the  verdict.* 
If  the  contract  contains  special  provisions  as  to  the  mode  of 
performance,  the  proper  mode  of  declaring  is  still  on  the  con- 
tract itself,  and  not  on  the  general  counts,  setting  it  out  at 
length,  or  in  substance,  with  proper  averments,  to  show  that 
the  conditions  to  the  plaintiff 's  right  of  recovery  have  all  been 
complied  with.'  No  demand  is  necessary.  Bringing  the  ac-, 
tion  is  a  sufficient  demand  on  a  contract  to  pay  generally,  and 
without  time  or  terms  specified.  It  is  a  debt  payable  when  the 
services  are  perf  irmed,  and  no  previous  demand  of  payment  is 
required.®  An  express  agreement  for  extra  pay  must  be  shown 
where  a  party  works  for  a  monthly  salary.' 

§  902.  Joint  Services. — Where  two  persons  are  employed 
by  a  claimant  of  a  tract  of  land  to  procure  a  conlirmatioa 
of  the  same,  such  service  is  not  joint,  and  a  separate  action 
may  be  maintained  by  such  agents  for  their  expenses  thus  in- 
cur red.  ^ 

§  903.  Jurisdiction. — A  British  seaman  on  board  a  British 
vessel  of  which  a  British  subject  is  master,  may,  when  dis^ 
charged  by  the  master  in  a  port  of  the  United  States,  without 
any  fault  on  the  part  of  the  seaman,  sue  for  and  recover  his- 
wages  in  a  state  court.* 

> Crawford  7.  Morrer,  8  John!".  255;  Duer,  295;.   Atkinson  v.  C  .llins,.  80^ 

Van  Alstine  v.  Wimple,  6  Cow.  1«4.  Barb.    480;  S.  C,  »  Abb.     Pr.   353; 

«  Kine  v.  Brown.  2  Hill,  485;  Bnld-  Brown  v.  Colie,  1  E   D.  Smiih,  266.^ 

win  V.  Palmer,  10  N.   Y.  232;  Fuller  Wyokoffv.  Myers,  44  N.  Y.  143. 
V.  Reed,  88  Gal.  99.  'Lake   Ontario  R.  R.  Co.  v.  Mason». 

3  Edwards    V.  Nichols,   3  Day,   16;  16   N.     Y.    451;     Ernst  v.   Bartle,.  1 

compare  Willamette  Pails Transporta-  Johns.  Gas.  319. 
tion  Go.  V.  Smith,  1  Or.  171.  ^  Cany  v.  Halleck.  9  Gal.  198. 

*McManu3V.    Ophir  S.  M.    Co.,  4        «  Conner  v.  Hutchinson,  12  CaL  126» 
jijev.  15.  "^Pugh  V.  UillaiUj.l  Cal.  iba, 

6  Adams  v.  Mayor  etc  of  N.  Y,  4^ 
EsTiCB.  Vol.  1—26 


402  FORMS  OF  COMPLAINTS.  §   904. 

§  90  L    For  Services  at  a  Reasonable  Price. 

Form  No,  225. 
[TrxLE.] 
The  plaintiff  complains,  and  alleges: 

I.  That  between  tlie -  day  of ,  18...,  and  the 

day  of ,  18...,  at ,  he  [made  sundry 

repairs  on  several  articles   of    furniture]  for  the  defendant,  at 
his  request. 

II.  That  the  said  services  were  reasonably  worth 

dollars. 

IIL  That  defendant  has  not  paid  the  same  [or  that  no  part 
thereof  has  been  paid,  except,  etc.] 

[Dbmand  of  Judgment.] 

§  905.  When  Action  Lies — Allegations  — ^The  general 
rule  of  law  is,  while  a  special  contract  remains  open  or  unper- 
formed, the  party  whose  part  of  it  has  not  been  done  can  not 
-sue  in  indt^hitatus  assumpsit,  to  recover  a  compensation  for  what 
he  has  done,  until  the  whole  shall  be  completed.  But  the  ex- 
ceptions from  that  rule  are  cases  in  which  something  has  been 
done  under  a  special  contract,  but  n  t  in  strict  accordance 
with  it ;  but  if  the  other  party  derives  any  benefit  from  the 
labor  done,  the  law  implies  a  promise  on  his  part  to  pay  such  a 
remuneration  as  the  work  is  worth ;  and  to  recover  it  an  action 
of  indebitatus  assumpsit  is  maintainable.^  The  services  must 
have  been  rendered  in  pursuance  of  an  agreement,  express  or 
implied,  that  they  were  to  be  paid  for.^  But  a  person  enjoying 
the  benefit  of  the  services  of  another  is  presumed  to  be  bound 
to  pay  therefor  what  they  are  reasonably  worth.^  But  this  pre- 
sumption may  be  rebutted  by  proof  of  agreement  at  a  fixed 
amount.*  And  where  a  hired  person  continues  in  employment 
after  the  term  of  the  contract,  the  presumption  is  that  the  same 
wages  are  to  be  continue  1  under  the  new  employment,  and  the 
servant  can  not  recover  on  a  quantum  meruit.^  If  the  complaint 
alleges  no  special  contract,  plaintiff  can  recover  only  what  his 
services  are  worth. ^  In  an  action  on  a  quantum  meruit,  for 
services  rendered,  excuses  for  not  performing  the  contract 
need  not  be  set  up.'  The  complaint  in  an  action  against  a 
guardian,  to  recover  from  his  ward's  estate  for  services  ren- 
dered them,  must  allege  that  the  employment  of  the  plaintiff 

*  Dernoott  v.  Jones,  28  How.  U.  S.  »  Moulin  v.  Columbet,  22  Gal.  609. 

220.  ♦  Id. 

«  Maltby  v,  Harwood,  12  Barb.  473 ;  »  Nicholson  v.  Patchin.  5  ChI.  476. 

Livingjston  v.  Ackpston,  5  Cow.  531 ;  •  Crole  v.  Thomaa,  19  Mo.  70. 

"WiUitimsv.  Hulchiasou,  3  N.  Y.  312.  »  Wolfe  v.  Hovi^es,  20  IlJ.  Y.  197. 


§  910.  SERVICES,  WORK,  AND  LABOR.  403" 

was  a  reasonable  and  proper  expense  incurred  by  the  guard- 
ian.^ 

§  906.  Services  of  Wife — Proof  that  the  plaintiff  was 
wife  of  one  of  the  parties  defendant,  defeats  the  implication  of 
a  contract  as  on  a  quantum  meruit.^ 

§  907.  Subsequent  Promise. — Where" a  promise  to  pay  is 
made  subsequent  to  the  completion  of  the  services,  it  must  be 
shown  that  the  services  were  rendered  at  the  defendant's  re- 
quest.3 

§  908.    By  Carriers,  for  Freight. 

Form  No.  226. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the  day  of ,  18...,  he  transported 

[in  his  wagon],  thirty  tons  of  coal,  from ,  to , 

for  the  defendant,  and  at  his  request. 

II.  That   defendant    promised   to   pay   plaintiff  the  sum  of. 
dollars  per  ton,  as  freight  thereon  [or  that  such  trans- 
portation was  reasonably  worth  dollars]. 

III.  That  defendant  has  not  paid  the  same,   nor  any  part 

thereof. 

[Demand  or  Judgment.] 
§  909.    For  Passage  Money. 

Form  No.  287, 
[TrrLi!.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of  ,  18...,  he  conveyed  de- 
fendant in  his  steamer,  called  the ,  from to 

,  at  his  request. 

II.  That  defendant  promised  to  pay  plaintiff dollars 

therefor  [or  that  said  passage  was  reasonably  worth 

dollars] . 

III.  That  defendant  has  not  paid    the    same  nor  any  part 

thereof. 

[Demand  of  Judgment.] 

§  910.    By  Parent,  for  Services  of  Minor  Son. 

Form  No.  228, 
[Title.] 

The  plaintiff  complains,  and  alleges : 

I.  That  one  A.  B.  rendered  services  [as  clerk]  to  the  defend- 
ant, at  his  request,  in  his  store  at i  from  the • 

3ay  of ,  18..^  to  the day  of 18... 

1  Caldwell  v.  Young,  21  Tex.  800.  Parker  v.  Crane,  6  Wend.   <547;  8e« 

«  .\!iSulo  V.  Sunol,  14  Cal.  402.  also  1  Smith's  Lead.  Chs.  H.   &  W. 

«  Barlholomew  V.Jackson,  20. F.'hns.  notes,  222;    see  also  Utswett  v.  Brpiv 

28;  Frear  v.  Hardenbergb,  6  Id.  272  i  tun,  5DAljr  \JS.  Y.)  1. 


404  FORMS  OP  COMPLAINTS.  §   911. 

II.  That  such  services  were  reasonably  worth dol- 
lars [or  allege  price  agreed,. as  in  preceding  forms]. 

III.  That  the  said  A.  B.  was  then,  and  is  now,  under  twent}'- 
one  years  of  age,  and  the  minor  child  of  this  plaintiff. 

IV.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[DEMA>rD  or  Judgment.] 

§  911.  Interest  of  Parent. — Legal  interest  vests  in  a 
parent  for  the  work,  labor,  and  services  of  his  child,  where 
there  is  no  express  agreement.^  But  under  an  express  agree- 
ment, or  where  circumstances  warrant  the  conclusion  that  it 
was  understood  that  the  child  might  receive  his  earnings,  pay- 
ment to  such  child  will  be  good.*  So  where  the  father  gives 
his  implied  consent. ^  So  the  father  in  the  above  instances  can 
not  sue  for  such  services,  even  though  he  give  notice  not  to 
pay  said  son  his  wages. ^  A  father  can  not  sue  in  his  own  name 
for  money  due  his  minor  son,  in  consideration  of  his  enlistment 
under  a  contract  made  with  the  father's  consent.* 

§  912.    For  Services  and  Materials,  at  a  Fixed  Piice. 

Form  No.  229 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of ,  18...,  at , 

he  furnished  the  paint,  and  painted   defendant's  house,  at  his 
request. 

II.  That  defendant  promised  to  pay  him dollars 

therefor. 

III.  That  he  has  not  paid  the  same  [or  that  no  part  of  the 
s^me  has  been  paid,  except,  etc.] 

[Demaks  or  Judgment.] 

§  913.  Demand — Cauie  of  Action. — In  an  action  for 
services  and  materials  furnished,  where  both  items  go  to  con- 
stitute a  single  cause  of  action,  it  must  be  made  so  to  appear 
in  the  complaint.     Bringing  the  action  is  sufficient  demand.* 

§  914.    By  an  Attorney  for  Services. 

Form  No.  SSO. 
[Title.] 

The  plaintiff  complains,  and  alleges; 

»Shutev.  Dorr,  5"Wend.  20*.  United    States  t.    Merlz,    2   Watts, 

' 'Id. ;  Benson  V.  Remington,  2  Mass.  40i;  Onle  v.   Parroit,    1    N     H.   28;' 

115;  McGoy  V.  HaflFman,  8  Cow.  81.  Eubanks    v.   Peak,     2    Bailey,    497; 

»  Whiting  V.  Earle,  3  Pick.  201 ;  see  Chase  v.  Smith,  6  Vt.  556. 

Burlingamev.  Burlingame,  7'Oow.  92;  '  Mears  v.  Biekford,  65  Me.  528;  nee 

Keen  v.  Sprastue,  3  G-rcenl.  77 ;  Maa-  also  Simpson  v.  Buck,  6  Lans.  (N.  Y.) 

Chester  T.  Smith,  12  Pick.  115.  837. 

*  Morse  v.  Welton,   6  Conn.  547}  •Peeterv.  Heath,  11  Wend.  479,   . 


§916.  SERVICES,  WORK,  AND  LABOR.  405 

I.  That  between  the - day  of ,  18...,  and  the 

day  of  ,  18...,  the  plaintiff  performed  serv- 
ices for  the  defendant,  at  his  request,  in  prosecuting  and  de- 
fending certain  suits,  and  in  drawing  and  engrossing  various 
instruments  in  writing,  and  in  counseling  and  advising  the  de- 
fendant, and  in  attending  in  and  about  the  business  of  the 
defendant. 

II.  That  said  services  were  reasonably  worth  the  sum  of 
dollars. 

III.  That  defendant  has  not  paid  the  same,   nor  any  part 

thereof. 

[Demand  of  Judgmknt.] 

§  91 5.  When  Action  Lies — Allegations. — In  an  action  by 
an  attorney  for  his  fees  it  is  necessary  to  aver  and  prove  on  the 
trial  a  retainer  or  employment  of  the  plaintiff  as  attorney  in  the 
suit  or  business  in  wliieh  his  services  was  rendered.^  It  is  not 
necessary  to  show  a  written  retainer,  a  parol  employment  will  suf- 
fice ;  or  the  jury  may  infer  a  retainer  from  acts  of  the  client,  in  the 
progress  of  the  suit,  amounting  to  a  recognition  of  the  attorney, 
or  from  his  undertaking  to  pay  for  the  services.^  If  the  services 
were  rendered  as  attorney  of  another  person  than  the  defend- 
ant, facts  showing  the  defendant's  liability  therefor  must  be 
alleged. 3  A  complaint  for  money  expended  and  services  per- 
formed should  state,  for  the  use  and  benefit  of  defendant,  and 
at  his  instance  and  request.  So  in  regard  to  performance  of 
labor.*  So  a  complaint  which  avers  substantially  that  the  de- 
fendant was,  at  a  certain  time,  in<lebted  to  the  plaintiff  in  a  cer- 
tain sum,  for  professional  services  rendered  at  the  special  instance 
and  request  of  the  defendant,  is  sufficient,  without  statins:  in 
terms  the  value  of  the  services,  or  that  the  defendant  promised 
to  pay.* 

§  916.  Measure  of  Damages — Contingent  Fee. — To  as- 
certain what  may  be  a  reasonable  compensation  for  services 
rendered  by  an  attorney,  the  amount  involved  and  the  charac- 
ter of  the  business  transacted  by  him  must  be  taken  into  ac- 
count, and  the  time  employed ;  not  the  time  immediately  devoted 
to  the  business  alone,  but  the  tijue  which  he  must  lose  from 
other  business  in  attending  to  it.*  In  addition  to  these,  the 
jury  should  consider  the  character  of  the  litigation  in  which  the 

1  Hotchkiss  V.  Leroy.  9  Johns.  142;        '  ^Te^ritt  v.  Millard,  5  B'>8w.  645. 
BurtrhHrt  v.  Gardner,  3  Brtrb.  64.  *  Hiisjuetv.  Owen.  1  Nev.  4')4. 

»  Harper  v.  Williamson,  1   McCord,         '  VVilkins  v.  Stidger,  22  Cal.  2.32. 
156:  Owen  v.  Ord,  8  Car.  &  P    349;        «  Quint  V.  Ophir  S.  AL  Co.,  4  Nev, 

Wiirpins  V.  Ppppin,  8  Henv.  340;  see  304. 
also  Allen  v.  Bane,  4  Id.  494. 


406  FORMS  OF  COMPLAINTS.  §   917. 

services  were  rendererl ;  the  novelty,  difficulty,  and  importance 
of  the  questions  involved ;  the  value  of  the  rights  or  property  in 
controversy;  the  attorney's  position  in  the  case  as  leading  or 
assistant  counsel,  and  the  degree  of  responsibility  resting  upon 
him ;  and  the  fact,  if  it  be  a  fact,  that  compensation  was  wholly 
contingent  upon  success.^  If  the  services  were  so  contingent, 
the  question  when  such  success  was  obtained  is  a  question  of 
law.^  And  an  instruction  in  a  suit  on  a  quantum  meimt,  to  re- 
cover counsel  fees,  that  "  if  plaintiffs'  fee  was  to  be  contingent 
on  success,  and  defendant  settled  the  suit  without  plaintiffs' 
consent,  plaintiffs  could  recover  what  their  services  were  worth,** 
does  not  incorrectly  state  the  law.^  And  an  instruction  to  the 
juryinasuit  to  recover  counsel  fees,  that  "if  plaintiffs  were 
employed  by  defendant  to  come  from  San  Francisco  to  Virginia 
city,  or  from  San  Francisco  to  Aurora,  and  there  was  no  special 
agreement  as  to  the  amount  to  be  paid,  they  can  only  recover 
the  value  of  the  services  rendered  at  the  place  where  they  were 
rendered,  with  the  addition  of  reasonable  traveling  expenses; 
and  if  the  traveling  expenses  were  paid  by  defendant,  then  they 
can  not  be  recovered  by  plaintiffs,"  was  held  clearly  erroneous, 
and  properly  refused.'* 

§  917.  For  Services  and  Materials,  at  a  Reasonable 
Price. 

Form  No.  gSl, 

[TiTLB.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the day  of ,  18...,  at ,  he 

built  a  house  known  as  No ,  street,  in  said  city, 

and  furnished  the  materials  therefor,  for  the  defendant,  at  his 
request. 

II.  That  the  said  work  and  materials  were  reasonably  worth 
dollars. 

III.  That  the  defendant  has  not  paid  the  same. 

[Demand  of  Judqmknt.] 

§  918.  By  Advertising  Agents,  for  Services  and  Dis- 
bursements. 

Form  No.  SSi. 
[Title.]  « 

The  plaintiff  complains,  and  alleges: 

I.  That  between  the day  of  ,  18...,  and  the 

day  of  ...,  18...,  at  ,  the  plaintiff  rendered 

iLeitensdorfer  v.  King,  8  West  '  Quint  v.  Ophir  S.  M.  Co.,  4  Nev. 
Coast  Ri-p.  135.  804. 

«  Loitetisdorfer  v.  King,  3  "West  «  Qiaint  V.  Ophir  S.  M,  Co.,  4  Nev. 
Coast  Kep.  lo5.  814. 


§  921.  SERVICES,  WORK,  AND  LABOR.  407 

services  to  the  defendant,  at  his  request,  in  causing  the  defend- 
ant's advertisements  of  his  business  to  be  inserted  in  the  fol- 
lowing named  newspapers  and  periodicals  [names  of  news- 
paper ■>]. 

II.  That  the  plaintiff  paid  out  at  the  request  of  the  defend- 
ant, for  such  insertions  for  the  use  of  the  defendant,  and  at  his 
request dollars. 

III.  That  the  defendant  promised  to  pay  said  amount,  to- 
gether with  a  reasonable  sum  for  said  services. 

rV.  That  said  services  were  reasonably  worth dollars. 

V.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

(Demand  of  Jitdgmknt.] 

§  919.    By  Publisher  and  Proprietor  for  Advertising. 

Form  No.  2S3. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  the  plaintiffs,  at  the  times  hereinafter  mentioned,  were 
publishers   and   proprietors   of  the  daily  newspaper  known  as  the 

"Mountain    Avalanche,"    pubUshed    at ,    in  the  county 

of ,  in  this  state. 

II.  That    between    the day   of ,  18 ,   and  the 

day   of ,    18 ,    the     plaintiff     published 

insertions  in  the  said  newspaper  of  the  advertisements  of  the 
defendant  at  his  request. 

III.  That  such  services  and  publication  were  reasonably  worth 
dollars. 

IV.  That  the  defendant  has   not  paid  the  same,  nor  any  part 

thereof. 

[Demand  of  Judgment.] 

§  920.    For  Stabling  Horses. 

Form  No.  254. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That,  at  the   request  of  the   defendant,  he   provided  for, 

kept,  and  fed  a  horse   of  the  defendant,  from  the day  of 

,  18 ,  to  the  day  of ,  18 

II.  That  such  keeping  and  finding  of  said  horse  was  reason- 
ably worth  dollars. 

III.  That  he  has  not  pai  i  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  921.    Special  Contract,  Completsly  Filled. 

Form  No.  235. 
[Title.] 

The  plaintiff  complains,  and  alleges: 


•  408  FORMS  OF  COMPLAINTS.  §   922. 

I.  That  on  the day  of 18..,  at ,  the 

defendant  made  his  agreement  in  writing  under  his  hand   and 
seal,  of  which  the  following  is  a  copy  [copy  of  agreement]. 

II.  That  the  plaintiff  has  duly  performed  all  the  conditions 
thereof  on  his  part. 

III.  That   on  the  day   of  ,  18...,  at   , 

the  plaintiff  demanded  of  the  defendant  payment  of  the  sum  of 
dollars,  in  said  contract  mentioned. 

rV".  That  he  has  not  paid  the  same  nor  any  part  thereof. 
[Demand  of  Judgment.] 

§  922.  Partnership. — Where  partners  employed  plaintiff 
on  condition  that  a  certain  portion  of  his  wages  should  be  re- 
tained till  a  certain  sum  had  accumulated,  when  plaintiff  should 
become  a  partner,  and  during  the  accumulation  the  firm  dis- 
solved, the  plaintiff  may  sue  on  the  special  contract  or  for  work 
and  labor.* 

§  923.  Performance. — If  the  plaintiff  undertakes  to  aver 
performance  by  setting  out  the  facts  showing  performance,  he 
may  be  held  to  aver  them  with  certainty.' 

§  924.  The  Same,  where  the  Contract  was  Fulfilled 
by  an  Assignee. 

Form  No.  £36. 

[TlTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of  ,  18...,  at de- 
fendants, in  consideration  of ,  executed  and  delivered  in 

writing,  under  their  hands  and  seals,  a  contract  with  one  A.  B., 
of  which  the  following  is  a  copy,  and  marked  "  Exhibit  A." 

II.  That  thereafter,  and  before  the  day  of   , 

said  A.  B.  duly  assigned  the  same,  and  all  his  rights  under  it, 
to  the  plaintiff. 

III.  That  up  to  the  time  of  the  assignment,  the  assignor  had 
duly  performed  all  the  conditions  of  the  contract  on  his  part, 
and  that  since  said  assignment,  the  plaintiff  duly  performed  all 
the  conditions  thereof  on  his  part. 

IV.  That  on  the day  of ,  18...,  at , 

the  plaintiff  demanded  of  the  defendant  payment  of  the  sum  of 
dollars,  in  said  contract  mentioned. 

V.  That  he  has  not  paid  the  same. 

[Demand  of  Judgment] 
[Annex  copy  of  contract,  marked  "  Exhibit  A."] 

J  Adams  V.  Pugh,  7  Cal.  150.  ifi^d  contract,  see  Smith  v.  Brown,  17 

«  Hatch  V.   Peet,  23  Barb.  675.     As    Barb.  431. 
to  averment  of  peri'ormanue  on  a  mod- 


§  928.  USE  AND  OCCUPATION.  409 

]  925.  Performance,  how  Alleged. — One  suing  on  a  con- 
tract assigned  to  him  may  allege  performance  by  saying  that 
up  to  the  time  of  the  assignment  the  assignor  had  performed, 
on  his  part,  all  the  covenants  of  the  contract,  and  that  after- 
wards the  plaintiff  fully  performed  the  conditions  imposed  by 
the  contract  on  the  assignor.^  Where  plaintiff  has  bound  him- 
self to  procure  certain  acts  to  be  done  by  third  parties,  adding 
that  those  on  whose  behalf  he  acted  have  also  performed,  is 
unnecessary.* 


CHAPTER    XIII. 

FOR  USE  AND  OCCUPATION. 

§  926.  On  an  Express  Contract.. 

Form  No.  SS7. 
[Title] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the  day  of ,  18...,  at , 

the  plaintiff  rented  to  the   defendant,  and  the   defendant  hired 

from  the  plaintiff  [the  office  No ,  street],  and  agreed 

to  pay  therefore  the  monthly  rent  of dollars,  payable 

[monthly],  on  the  first  day  of  each  [month]. 

II.  That  defendant    occupied    the    said     premises   from   the 

day  of  ,  18...,  to  the day  of   , 

18... 

III.  That  defendant  has  not  paid dollars,  being  the 

[part  of  said]  rent  due  on  the    day  of  ,  18... 

[Demand  of  Judgment.] 

§  927.  Summary  Proceedings  to  Recover  Possession. 

It  seems  that  where  a  landlord  elects  to  terminate  a  lease  for 
non-payment  of  rent,  and  commences  summary  proceed! ntrs  to 
recover  possession,  he  is  not  entitled  to  recover  for  use  and  oc- 
cupation from  the  time  he  terminated  the  lease  until  he  obtained 
possession 


3 


§  928.  Occupancy. — Actual  continued  occupancy  is  not 
necessary  to  be  shown.* 

*  California  Steam  Navigation  Co.  •  Powers  v.  Wittv,  42  How.  Pr. 
V.  Wright.  6  Cal.  258.  352 :  S.  C,  4  Dalv.  552. 

*  Rowland  v,  Phaien.  1  Bosw.  43.  'Little  v.  MaVtin,  3  Wend.  220; 
For  cases  of  services  rendered  to  rela-  We^tliike  v.  De  Graw,  25  Id.  669; 
lives,  see  Thornton  v.  Grunare.  66  Hottoiaa  v.  Delibauij,  13  Abb.  Pr. 
Barb.  507;  aud  Neal  v.  Giimure,  79  88b. 

Pa.  Hi.  421. 


410  FORMS  OF  COMPLAINTS.  §   ^29. 

§  929.    For  Rent  Reserved  in  a  Lease. 

Form  No.  2S8. 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day   of  ,   18...,   at   , 

the  defendant  entered  into  a  covenant  with  plaintiff,  under 
their  hands  and  seals,  a  copy  of  which  is  annexed  hereto,  and 
made  a  part  of  this  complaint,  marked  "  Exhibit  A  "  [or  state 
the  substance  of  the  agreement] . 

II.  That  the  defendant  has  not  paid  the  rent  for  the  month 
ending  on  the day  of  ,  18...,  amounting  to 

dollars. 

[Demand  or  Judomkvt  ] 
[Annex  copy  of  lease,  marked  "Exhibit  A.*^ 

§  930.  Parties. — Where  parties  own  tracts  in  severalty,  they 
can  not  join  in  an  action  to  recover  for  the  use  and  occupation  of 
the  entire  tract. ^ 

§  931.  Designation  of  Premises. — The  premises  may  be 
designated  by  a  simple  reference  to  the  lease,  as  in  the  above 
form.* 

§  932.  Forfeiture. — ^The  tenant  can  not  insist  that  his  own 
act  amounted  to  a  forfeiture ;  if  he  could,  the  consequence 
would  be  that  in  every  instance  of  an  action  of  covenant  for 
rent  brought  on  a  lease  containing  a  provision  that  it  should  be 
void  on  the  non-performance  of  the  covenants,  the  landlord 
would  be  defeated  by  a  tenant  showing  his  own  default  at  a 
prior  period,  which  made  the  lease  void.-"'  At  common  law  there 
was  no  forfeiture  of  an  estate  for  years  for  the  non-payment  of 
rent.*  By  failure  to  pay  rent  when  demanded,  the  contract 
under  the  lease  is  determined,  and  possession  from  that  time  is 
tortious.^  But  the  mere  failure  to  pay  will  not  make  a  forfeit- 
ure ;  a  formal  demand  on  the  day  it  becomes  due  is  necessary.^ 
Where  the  record  shows  no  demand  of  rent,  there  can  be  no 
forfeiture.'' 

§  933.  Liability  of  Tenant.— The  tenant  is  liable  to  pay- 
ment until  he  has  restored  full  and  complete  possession  to  the 
landlord,  and  his  liability  to  pay  the  rent  is  not  discharged  by  an 
eviction,  unless  under  a  title  superior  to  the  landlord's,  or  by 
some  agency  of  the  landlord's.* 

»  Tfnnant  v.  PfistPf,  51  Cal.  611.  *  Chipman  v.  Emeric,  8  Cal.  273. 

*  DiiMda#8  V.  Lord  Wymouth.  Cowp.  *  'IVent  v.  Liddell,  10  Cal.  a02. 

6''i5:    Van    Rensselaer  v.    Bradley,    3  •  GHSkill  v.  Trainer.  8  ("al.  384. 

D.Mi.  135.  '  Cliipman  v.  Em'  lii-,  3  Cal.  273. 

8  D>ed.  Br\-an  V.  Banks,  4  B.  &  Aid.  •  Schilliug    v.      liuluies,    Zi    Oal. 

409;  Sluyv.-saiit  V.  l>avis,  9  Paiye  Ch.  227. 
4:;7  ;  Camdeld  v.  Westcult,  6  Cow.  270. 


§  936.  USE  AND  OCCUPATION.  411 

§  934.  Term  of  Lease. — If  the  tenant  taVes  a  receipi:  from 
his  landlord,  specifying  the  amount  of  real  paid,  and  the  length 
of  the  term,  to  commence  on  the  expiration  of  the  lease,  the  new 
term  will  be  for  the  time  specified  in  the  receii)t.  No  new  ten- 
ancy by  implication  arises  in  such  cases. ^  Where  a  landlord 
served  upon  his  tenant,  wlio  was  occnpjnng  under  him  certain 
premises,  under  a  rentof  two  hundred  and  fifty  dollars  per  month, 
a  notice  to  quit,  but  before  the  time  at  which,  by  the  effect  of 
the  notice,  the  tenancy  would  have  terminal ed,  the  tenant, 
through  a  third  person,  proposed  to  the  land'ord  to  continue 
his  occupancy,  at  a  rent  of  three  hundred  dollars,  with  which 
proposal  the  landlord  expressed  himself  satisfied,  but  did  not  in 
terms  notify  the  tenant  of  his  acceptance  of  it,  and  he  con- 
tinued to  occupy  the  premises,  it  was  held,  in  an  action  by  the 
landlord  for  rent  at  the  rate  of  three  hundred  dollars  per  month, 
that  it  must  be  inferred  that  the  subsequent  occupation  of  the 
tenant  was  with  the  consent  of  the  landlord,  on  the  basis  of  the 
proposal,  rather  than  as  a  trespasser,  and  that  plaintiff  was  enti- 
tled to  recover.^ 

§  935.    For  Deficiency  after  a  Re-entry. 

Fonn  No.  239. 

[TrTLTC] 

Tlie  plaintiff  complains,  and  alleges: 

I.  That  by  a  lease  made  between  the  plat'nliff  and  the  de- 
fendant, on   the >  day   of ,18..,  at , 

the  defendant  rented  from  the  plaintiff,  and  the  plaintiff  de- 
mised and  leased  to  the  defendant,  the  premises  therein  men- 
tioned, at  the  monthly  rent  of dollars,  gold  coin,  pay- 
able monthly  in  advance,  on  the  day  of  each  and  every 

month,  and  that  said  indenture  contained  a  coveiiantof  which  the 
following  is  a  copy  [copy  covenant]. 

II.  The  defendant,  contrary  to  his  covenant  [state  the  T»reach], 
and  that  the  plaintiff  for  that  cause  re-enierea  the  premises,  and 
took  possession  thereof  by  virtue  of  the  antliority  given  in  said 
lease,  and  as  agent  of  the  defendant,  and  not  otherwise,  and  that 
he  made  diligent  efforts  to  relet  the  premises  for  the  defendant, 
but  was  unable  to  do  so. 

III.  That  thereby  the  plaintiff  lost  the  sum  of  dollars 

for  rent  for  the  mouths  of and 

[UicMAND  OT  Judgment.] 

§  936.  Surrender  of  Premises. — One  of  the  most  impor- 
taut  duties  of  the  tenant  is  to  peaceably  surrender  the  premises 

»  Blumeuberg  v.  Myres,  32  Cal.  93.        »  Hoff  r.  Baum,  21  Cal.  120. 


412  FORMS  OF  COMPLAINTS.  §  937. 

as  soon  as  the  tenancy  has  expired.^  The  surrender  of  a  lease- 
hold estate  is  the  merger  of  tbe  fee,  but  tliis  will  not  defeat  the 
rights  of  a  third  party  intervening  before  the  merger  took 
effect.' 

§  937.  Waiver  of  Forfeiture. — The  suTweqnent  receipt  of 
the  rent  by  the  lessor  is  a  waiver  of  the  forfeiture  unless  the 
covenant  has  a  continuing  covenant,  or  the  lessor  was  ignorant 
of  the  breach.3  The  forfeiture  of  a  lease  is  not  waived  by  the 
lessor  allowing  the  tenant  to  hold  over,  without  notice  to  quit, 
unless  the  circumstances  show  a  new  term  created.* 

§  93S.    Against  Assignee  of  Lessee. 

Jbuim  No.  240, 
[TrrLK.] 
The  plaintiflP  complains,  and  alleges: 

I.  That  on  the day  of  ,  18...,  by  a  lease  made 

between  this  plainlifl  and  one  A.  B.,  under  the  hand  and  seal 
of  said  A.  B.  [of  which  a  copy  is  annexed],  this  plaintiff  leased 
to  said  A.  B.,  and  said  A.  B.  rented  from  the  plaintiff,  certain 
lands,  to  have  and  to  hold  to  said  A.  B.  and  his  assigns,  from 

the day  of  ,  18...,  for  the  term  of , 

then  next  ensuing,   for  the    [monthly]    rent  of  dollars, 

payable  to  this  plaintiff  on  the  [state  da\'S  of  payment],  which 
rent  said  A.  B.  did  theieby,  for  himself  and  his  assigns,  cove- 
nant to  pay  to  the  plaintiff  accordingly. 

II.  That  thereafter,  and  during  said  term,  to  wit,  on  the  

day  of ,  18...  [naming   a  day  before  breacii],    all  the 

estate  and  interest  of  said  A.  B.  in  said  term,  by  an  assignment 
then  by  him  made,  became  vested  in  the  defendant,  who  there- 
upon entered  into  possession  of  the  demised  premises. 

III.  That  during  the  time  the  defendant  was  so  possessed  of 

the  premises,  to  wit,  on  the day  of  ,   18...,  the 

sum   of dollars   of    said   rent,   for    the    month  ending   on 

that  day  [or  otherwise],  became  due  to  the  plaintiff  from  the 
defendant. 

IV.  That  he  has  not  paid  the  same  or  any  part  thereof. 

[DfiMAUD   OF   JUDOMKNT.] 

S  939.  Assignment. — In  such  cases  the  assignment  need 
not  be  more  specitically  alleged.* 

§  940.  Liability. — The  liability  of  an  assignee  is  confined 
to  the  term  during  which  he  holds  the  premises,   by  himself,  or 

>  Schilling  V.  Holmes,  23  Ccl.  227.  *  Cnlilorwood  v.  Brocks.  28  Cal.  151. 

'  GH.'ikill  V.  Tiaiiifr,  ;]  ChI.  38t.  'Vhti  Rfussi-lapr  v.  Bradl"v,  3  D»'n. 

'^IcUi^uuT.  Muuie,  25  (Jal.  bSl.       135;  2Jorlua  v.  Vultee,  1  Hall,  427. 


§  943.  USE  AND  OCCUPATION.  41S 

his  imniecliate  tenants.^  The  assig^nee  of  a  lease  may  discharge 
himself  from  all  liability  under  the  covenants  of  a  lease,  by  as- 
signing over;  and  the  assignment  over  maybe  to  a  beggar,  a/eme 
covert,  or  a  person  on  the  eve  of  quitting  the  country  forever,  pro- 
viding the  assignment  be  executed  before  his  departure,  and  even 
though  a  premium  is  given  as  an  inducement  to  accept  the  transfer.* 

§  941.  Non-Payment. — It  is  sufficient  to  aver  that  the  de- 
fendant has  not  paid  the  same.' 

§  942.     Grantee  of  Reversion  against  Lessee. 

Form  Ho.  Ul. 

[TiTT.K.] 

The  plaintiff  complains,  and  alleges: 

I.  That  one  A.  B.  was  the  owner  in  fee  of  certain  premises 

[describe  them],  and  on  the day  of ,  18...,  by 

a  lease  made  between  him  and  the  defendant,  under  the  hand 
and  seal  of  the  defendant,  a  copy  of  which  is  annexed  and 
made  a  part  of  this  complaint,  marked  "Exhibit  A,"  he  leased 

to  the  defendant  said  premises,  from  the  day  of , 

18...,   for  the  term   of  then  next   ensuing,   for    the 

[monthly   or  yearly]  rent  of dollars,  payable  to  said 

A.  B.,  his  heirs  and  assigns,  on  the  [state  days  of  paj^ment], 
which  rent  the  defendant  did  thereby  covenaut  to  pay  to  said 
A.  B.,  his  heirs  and  assigns,  accordingly. 

II.  That  thereafter,  on  the day  of  ,  18..., 

at ....,  said  A.  B.,  by  his  deed,  under  his   hand  and  seal, 

sold  and  conveyed  to  this  plaintiff  the  demised  premises. 

III.  That  notice  thereof  was  given  to  this  defendant. 

IV.  That  thereafter,  to  wit,  on  the day  of , 

18...,  the  sum  of dollars  of  said  rent,  for  the  quarter 

ending  on  that  day  [or  otherwise],  became  due  to  the  plaintiff 
from  the  defendant. 

V.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[DwMArrD  or  Judgmbnt.^ 

§  943.    Allegation  of  Assignment. 

Form  No.  US.  ' 

That  on  the day  of ,  at  ,  the  said 

A.  B.,  assigned  to  the  plaintiff  said  lease  and  covenants,  and  all 
his  right  to  the  rent  therein  secured. 

*  Astor   ▼.    L'Amoreux,    4   Sandf,  *  Johnson  v.  Sherman,  15  Cal.  287; 

624.    As    to    the    liability    of    one  citini;  2  Piatt  on  Leases,  416. 

in  possession  without  a  valid  assign-  '  Dubois,  Ex'rs  of,  v.  Van  Orden,  6^ 

ment,    see    Carter  v.    Hammett,    12  Johns.  105;  Van  Rensselaer  v.  Bradley, 

Barb.  263;  Byerss   t.  Farwell,  9  Id.  8  Den.  135;  Holsmau  v.  De  Gray,  6 

61&.  Abb.Pr.  79. 


414  FORMS  OP  COMPLAINTS.  §  944. 

§  944.    Allegation  by  Heir  of  Reversioner. 

Form  No.  243. 

That  the  said  A.  B.  was  on  the  day   of 

18...,  seised  of  the  reversion  in  said  demised  premises.     That 

afterwards,  and  during  the  said  term,  on  the day  of 

,  18...,  A.  B.  died  so  seised;  whereupon  the  said  rever- 
sion then  descended  to  the  plaintiff  as  his  son  and  heir,  and 
thereby  plaintiff  then  became  seised  thereof  in  fee. 

§  945.  Assignments. — In  these  actions,  the  complaint 
should  specifically  allege  the  assignments  to  the  grantee,  and 
the  better  plan  is  to  annex  a  copy  or  copies  (if  there  be  several) 
to  the  comi)laint.^  It  should  be  alleged  distinctly  that  tliere 
was  a  lease,  that  the  defendant  was  lessee,  and  is  sued  for  the 
rent.* 

§  946.  Assignee  of  Devisee  ag?iinst  Assignee  of  Lessee. 

Form  No.  S44* 

[TrTT,B.] 

The  plaintiff  complains,  and  alleges: 

I.  That  one  A.  B.  was  in  his  life-time  the  owner  in  fee  of  certain 

premises  [describe  them],  and  that  on  the day  of , 

18....,  he  leased  the  same  to  one  C.  D  ,  by  his  lease  dated  on 
that  day,  a  copy  of  which  is  hereto  annexed  as  part  of  this 
complaint,  and  marked  "Exhibit  A." 

II.  That  by  virtue  thereof  the  said  C.  D.  entered  into  the 
possession  of  the  demised  premises. 

III.  That  on  the day  of 18...,  at ,  the 

said  C.  D.  assigned  all  his  right,  title,  and  interest  in  the  de- 
mised premises  to  the  defendant. 

IV.  That  on  the day  of ,  18...,  at ,  the 

said  A.  B.  died. 

V.  That  by  his  last  will  and  testament  which  was  proved 
and  admitted  to  piobate  before  the  probate  court  of  the  county 

of ,  in  this  state,  on  the day  of ,  18..., 

the  said  A.  B.  devised  the  reversion  and  rent  to  one  E.  F. 

VI.  That  on  the day  of  ,  18...,  at , 

the  said  E.  F.  assigned  the  said  reveraion  and  rent  to  the 
plaintiff. 

V^I.  That  after  the  said  E.  F.  so  assigned  the  said  reversion 

and  rent  to  the  plaintiff,  the  sum  of dollars  accrued 

as  the  rent  of  said  premises  for  the  [month  or  quarter]  ending 

on  the day  of ,  18...,  under  and  according  to  the 

terms  of  said  lease. 

>  Beardsley  v.  Knight,  4  Vt  47L  «  Willard  v.  Tillman,  2  Hill,  274. 


§   951.  USE  AND  OCCUPATION.  415 

VIII.  That  the  defendant  has  not  paid  the  same. 
[Dbmand  of  Judqmext.] 
[Annex  copy  of  l^ase,  marked  "Exhihit  A."] 

§  947.  Executor  and  Devisee. — One  who  is  both  executor 
and  devisee  of  the  lessor  may  join  a  claim  for  rent  subsequent 
to  the  decease  of  testator  with  a  claim  for  damao;es  for  breach  of 
covenant  respecting  personal  property  embraced  in  the  lease.^ 

§  948.    For  Use  and  Occupation  of  Fab  care. 

Form  No  £46. 
[TiTLl.] 

The  plaintiff  complains,  and  alleges: 

I.  Tliat  on  the day   of ,    18...,    at 

the   defendant  hired   from  the  plaintiff,  and  the  pLuutiff  rented 
to  the  defendant,  the  vacant  lot  of  land  [describe  it],  at  the  rent 

of dollars    per    month,    payable    in    gold   cjin,    monthly 

[or  otherwise] ,  on  the  first  day  of  each  month. 

II.  That  defendant  occupied  said  lot  by  permission  of  the 
plaintiff,  and  as  his  tenant,  under  said  agreement,  tor  the  graz- 
ing of  his  sheep  [or  cattle],  from  the day  of. ,  18..., 

to  the day  of ,  18... 

III.  That  the  defendant  has  not  paid  the  rent  for  the  months 

of and 

[Dbmand  ot  .JtroGMBNT.] 

§  949.  Request  and  Fermission. — The  allegation  that  the 
use  and  occupation  of  the  lot  in  question  was  at  the  request  of 
defendant,  and  by  the  permission  of  plaintiff,  is  the  allegation  of 
a  contract,  which  the  plaintiff  is  bound  to  establish  to  enable 
him  to  succeed.^ 

§  950.  Terms  Stated. — If  a  plaintiff  in  an  action  on  a  con- 
tract for  the  pasturage  of  cattle  at  a  fired  price,  does  not  insert 
in  his  complaint  any  qaant'tm  valebat  co^int,  judgment  must  be 
for  the  stipulated  sum,  or  for  the  defendant.* 

§  951.    For  Use  and  Occupation — Implied  Contract. 

Form  No.  S46. 

[TlTLB.] 

The  plaintiff  complains,  and  alleges : 

I.  That  defendant  occupied   the    [stable   or  dwelling   house, 

No.  47 street],  by  permission  of  the  plaintiff,  from 

the day  of ,  18...,  until  the day  of , 

18.... 

>  It  is  not  expected  that  this  form  •  Armstrong   v.  Hall,  17  How.  P& 

will  be  of  special  use  to  the  profession  76. 

in  CHJiforuia,  but  instances  may  pre-  »  Sampson  v.  Schaeffer,  3  Cal.201. 

Bent   themselves   where   it  may  be  of  *  Seale  T.  Emerson,  25  Cal.  293. 
utility,  and  it  ia  therefore  inserted. 


416  FORMS  OF  COMPLAINTS.  §  952. 

II.  That  the  use  of  the  said  premises  for  the  said  period  was 
reasonably  worth   dollars. 

III.  Tliat  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[DbMAND  of   JtTDQMKNT.] 

§  952  When  Action  Lies. — No  action  for  use  and  occupa- 
tion will  lie  where  possession  is  adverse  and  tortious,  for  there 
can  be  no  implication  of  a  contract.^  The  right  to  recover  for 
use  and  occupation  is  founded  alone  upon  contract.^  Or  an 
agreement  by  which  the  tenant,  with  permission  of  the  owner, 
occupied  the  premises. ^  But  in  certain  cases  a  contract  may  be 
implied.*  And  in  an  action  for  use  and  occupation  upon  an 
understanding  on  appeal,  the  defendants  are  estopped  from  deny- 
ing that  the  defendant  in  the  judgment  was  in  possession  at 
the  time  he  took  his  apjieal  and  gave  the  undertaking. ^  If  the 
occupation  was  contrary  to  the  owner's  will,  his  action  must  be 
for  damages.^  If  the  complaint  shows  that  the  occupation  was 
a  trespass,  it  is  of  course  bad  on  demurrer.' 

§  953.  Essential  Allegations — Title— Indebtedness. — 
The  plaintiff  need  not  set  forth  an  implied  demise,  but  may 
declaie  for  use  and  occupation,  and  recover  on  the  special  facts 
shown. ^  No  tenancy  can  be  implied  under  a  party  who  has  not 
the  legal  estate.^  But  it  would  appear  that  one  occupying  and 
paying  rent  to  an  apparent  proprietor  as  his  landlord,  can  not, 
when  sued,  allege  that  he  has  only  the  equitable  estate.^"  An 
averment  of  use  and  occupation  as  tenant  is  a  sufficient  aver- 
ment of  indebtedness.^  The  plaintiff  must  show  that  the  de- 
fendant used  and  occupied  the  premises  by  the  permission  of 
the  plaintiff. ^^  It  seems  that  in  this  action  plaintiff  need  not 
aver  title,  and  the  defendant  can  not  object  to  his  title. ^^ 

§  954.  Parties. — The  grantee  of  demised  premises,  on  the 
reversion  thereof,  is  the  proper  party  to  bring  suit  for  the  recov- 
ery of  rent  which  accrued  and  became  due  before,  and,  a  for- 
tiori, after  the  conveyance   to  him.     After  such  conveyance  an 

1  S:impson  V.  SchspfTer,  8Cal.  196;  •Smith  v.  Stewart,  6  Johns.  46; 
Bamirezv.  Murray,  5  Ciil.  222.  Bancroft  v.    Wardwell,    13  Id.    489; 

2  O'Connor  v.C'orbett,    3   Cal.  870;  Hall  v.  Southmayd,  15  Barb.  82. 
Espy  V.  Fanton,  5  Or.  423 ;    Lankford  '  Hurd  v.  Miller,  2  Hilt,  540. 

V.  Green,  52  Ala.  103.  «  Morris  v.  Niles,    lli  Abb.  Pr.    103; 

«  Atkins  V.   Humphrey  et   als.,  52  Waters  v.  Clark,  22  H'>w.  Pr.  104. 

En?.  Com.  L.  65:;    Selby  v.  Browne,  *  Morgell  v.  Paul,  2  Man.  &  It    303. 

7  Q.  B.  620;  63  Eng.  Com.  L.  620.  "  Dolhy  v.  lies.  11  Ad.  &  E  335. 

*  Osgood  y.  Dowev,   13  Johns.  240;  "  Walker  v.  Mauro,  18  Mo.  564. 
Abeel  v.  Radclitf,   id.   297;  Porter  v.  ^^  Sampson  v.  Sehaeffer,  3  Cal.  196; 
Bleller,    17  Barb.  149;  Kyerss  v.  Far-  Hathaw»y  v.  Rvan,  35  Id.  188. 

well,  9  Id.  615.  W  Veruan  v.  Smith,  16  N.  Y.  329. 

•  Murdock  v.  Brooka,  88  Oal.  696. 


§  959.  USE  AND  OCCUPATION.  417 

action  by  the  grantor  for  rent  can  not  be  sustained.'  Tennnts 
in  common  may  join  in  an  action  for  use  and  occupation  without 
showing  a  joint  demise.'''  So,  in  England,  an  infant  can  also 
maintain  this  action,  although  he  has  a  general  guardian. ^ 

§  955.  Separate  Demands. — In  New  York,  in  an  action  for 
use  and  occupation,  demands  for  rent  which  accrued  in  tlie  life- 
time of  a  decedent,  and  for  rent  accruing  after  his  decease,  while 
the  tenancy  was  continued  by  the  executors  on  account  of  the 
estate,  are  properly  joined  as  one  cause  of  action,  against  the 
executors  as  such.* 

§  956.  Tenant  at  Will. — If  a  party  enters  upon  land  whicli 
he  has  contracted  to  purchase,  with  the  consent  of  the  vendor, 
and  the  contract  falls  through  because  the  purchaser  fails  to 
pay  as  agreed,  the  vendor  may  treat  him  as  a  tenant  at  will, 
and  may  bring  assumpsit  for  use  and  occupation,  or  it  seems  he 
may  maintain  trespass.^  After  the  determination  of  a  tenancy 
at  will  by  notice,  assumpsit  for  use  and  occupation  lies  against 
the  tenant,  if  he  holds  over.' 

§  957.  Interest. — Interest  may  be  recovered  on  a  claim  for 
use  and  occupation,  after  demand.^ 

§  958.  Improvements. — A  defendant  who  entered  under  a 
bond  for  a  deed  from  the  plaintiff,  can  not  set  off  his  improve- 
ments against  the  damages  for  use  and  occupation.® 

§  959.    For  Lodging  and  Board. 

Form  No.  247. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges : 

I.  That  from  the day  of ,  18...,  until  the 

day  of ...,  18...,  defendant  occupied  certain  rooms  in  the 

house  [No.  54 street,  city  of ]  by  permis^iion 

of  the  plaintiff,  and  was  furnished  by  the  plaintiff,  at  his  request, 
with  food,  attendance,  and  other  necessaries. 

II.  That  in  consideration  thereof  the  defendant  promised  to 

pay  [or  the  same  was  reasonably  worth]  the  sum  of 

dollars. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[DiMAND  oj"  Judgment.] 

*  Anderson  v.  Treadwell,  1  Edm.  '  Woodbury  v.  Woodbury,  47  JN.H. 
201.  11;  Jones  v.'  Nathrop,  1  West  Coast 

s  Porter  v.   Bleiler,  17   Barb.  149;  Rep.  279. 

•Porter  v.   Bleiler,   17   Barb.  149;  «  Hogsett  v.  Elli»,  17  Mich.  351;  8 

and  see   Fitzmaurice    v.    Waugh,    3  Am.  Law.  Rev.  757,  768. 

Dowl.  &  R.  273 ;  16  Eng.  Com.  L.  R.  '  Ten  Eyck  v.  Hough  tali  ng,  12  How. 

169.  Pr.  623. 

*  Pugsley  V.  Aiken,  U  N.  Y.  491.  •  Kiiburn  v,  Ritchie,  2  Cal..l4e. 

JtsTJfije,  Vol.  1—27. 


418  FORMS  OF  COMPLAINTS.  §   960. 

§  9G0.     Allegation  for  Lodging. 

Form  No.  i48. 

That  the  defendant  occupied  rooms   in,  and  part  of  the  house 

of    the   plaintiff,  at  [and  if  furnished,    add,  together 

with  furniture,  linen  and  other  household  necessaries  of  the 
plaintiff  which  were  therein],  by  the  plaintiff 's  permission,  as 
,his  tenant,  from,  etc. 

§  961.    For  the  Hire  of  Personal  Property. 

Form  No.  £49. 
[TlTLB  ] 

The  plaintiff  complains,  and  alleges: 

I.  That  between  the  day  of ,  18...,  and  the 

day  of ,  18...,  the  defendant    hired  from   the  plaintiff 

[hordes,  carriages,    etc.],   for  which    he  promised  to  pay    the 

plaintiff,  on  account  thereof,  the  sum  of dollars  on  the 

day  of  ,  18.. 

II.  That  the  defendant  has  not  paid  the  same  [or  that  no  part 
'Of  the  same  has  been  paid  except  the  sum  of,  etc.] 

[Demand  OF  Judomknt.] 

§  962.  Essential  Allegations. — Facts  on  which  the  amount 
of  compensation  depends  must  be  set  forth.^  The  word  *'  hired  '* 
implies  a  request.' 

§  963.  Hire  of  a  Piano-forte,  witli  Damages  for  not 
Returning  it 

Form  No.  S50, 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 
First. — For  a  first  cause  of  action; 

I.  That  on  the day  of  ,  18...,  at , 

the  defendant  hired  from  the  plaintiff  one  piano-forte,  the  prop- 
erty of  the  plaintiff,  for  the  space  of  [six]  months,  then  next 
ensuing,  to  be  returned  to  this  plaintiff  at  the  expiration  of  said 
time  in  good  condition,  reasonable  wear  excepted,  for  the  use 
of  which  he  promised  ta  pay  this  plaintiff  a  reasonable  sum  [or 
state  how  much]. 

II.  That dollars  was  a  reasonable  sum  for  the  hire 

of  the  same. 

III.  That  he  has  not  paid  the  same. 
Second. — And  for  a  second  cause  of  action: 

I.  That  the  value  of  the  piano-forte  so  hired  by  the  defend- 
ant, as  above  alleged,  was  dollars,  and  that  the  de- 
fendant in  violation  of  his  ageeement,  has  not  returned  the 
same,  although  he  was,  on  the   day  of  18.. ., 

*  Relyea  v.  Drew,  1  Den.  501.  *  Emery  v.  Fell,  2  T.  R  28. 


§  964.  USE  AND  OCCUPATION.  419 

at ,  requested  by  the  plaintiff  so  to  do;  to  the  damage 

of  the  plaintiff dollars. 

[D  KM  AND  OF  JuDGMBTTr.] 

§  964.  Hire  of  Fainiture,  etc.,  -with  Damages  for  Ill- 
use. 

Form  Xo.  HSU 

[TlTLK.] 

The  plaintiff  complains,  and  alleges: 
First. — For  a  first  cause  of  action: 

I.  That  on  the day  of ,  18  ...,  at .^,  the 

plaintiff  rented  to  the  defendant,  and  the  defendant  hired  from 
the  plaintiff,  household  furniture,  plate,  pictures,  and  books,  the 
property  of  the  plaintiff,  to  wit  [describe  the  articles],  for  the 

space  of then  next  ensuing,  to  be  returned  by  him  to 

the  plaintiff  at  the  expiration  of  said  time,  in  good  condition, 
reasonable  wear  and  tear  thereof  excepted. 

II.  That  he  promised  to  pay  the  plaintiff  for  the  use  thereof 

dollars  [in  equal  quarterly  payments,  on  the ..» 

days  of thereafter]. 

III.  That  no  part  thereof  has  been  paid. 
Second. — For  a  second  cause  of  action: 
[Allege  as  in  preceding  form  to  II.] 

II.  The  plaintiff  further  alleges  tfiat  the  vaTne  of  the  prop- 
erty so  hired  by  the  defendant,  as  above  alleged,  was • 

dollars. 

III.  That  the  defendant,  in  violation  of  his  said  agreement 
to  return  the  same  in  good  condition,  neglected  the  same,  and 
through  his  negligence,  carelessness,  and  ill-use  the  same  be- 
came broken,  defaced,  and  injured  beyond  the  reasonable  wear 
thereof,  and  in  that  condition  were  returned  to  the  plaintiff,  to 
his  damage dollars. 

[DXMAND  OT  JlTDOMXKT.] 


SUBDl YISION  TH I RD. 

UPON  WRITTEN    INSTRUMENTS  FOR   THK   PAYMENT    OF 
MONEY  ONLY. 


CHAPTER  I. 

NEGOTIABLE  PAPER,  BONDS,  ETtt 
§  965.  Against  Maker. 

Foitn  No.  S58, 

[TiTLB.l 

The  plaintiff  complains,  aui  alleges: 

I.  That  the  defendant,  in   consideration    of   ,  made, 

executed,  and  delivered  to  the  plaintiff  a  certain  instrument  in 
writing  of  which  a  copy  is  hereto  annexed  and  made  a  part 
hereof  [or  an  instrumcut  in  writing  in  the  words  and  figures 
following,  to  wit]. 

n.  That  by  the  terms  of  said  written  instrument,  the  de- 
fendant became  indebted  to  the  plaintiff  in  the  sum  of 

dollars. 

III.  That  the  plaintiff  has  duly  performed  all  the  conditions 
thereof  on  his  part. 

IV.  That  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[OXMAKD  OT    JXIDGMTCWT.] 

§  966.  Altered  Instrument — Onus  Frobandi — A  party 
who  claims  under  an  instrument  which  appears  upon  its  face 
to  have  been  altered,  is  bound  to  explain  the  alteration.  But 
not  80,  when  the  alteration  is  averred  by  the  opposite  party, 
and  it  does  not  appear  upon  the  face  of  the  instrument.^  The 
alteration  of  the  number  of  a  state  bond,  pa3'able  to  bearer,  and 
not  required  by  law  to  be  numbered,  is  immaterial,  and  though 
made  with  fraudulent  intent,  does  not  avoid  it  in  the  hands  of 
a  subsequent  bona  fide  holder  for  value  without  notice.^  In 
California,  the  code  provides  that  the  party  producing  a  writ- 
ing as  genuine  which  has  been  altered,  or  appears  to  have  been 

>  United  States  v.  Linn,  1  How.  XJ.  8.  104. 

a  CommoowMltbv.  Emigrant  Industrial  Savings  Bank,  98  Mass.  12. 
420 


§  968.  NEGOTIABLE  Pi.PER,  BONDS,  ETa  421 

altered,  after  its  execution,  in  a  part  material  to  the  question 
in  dispute,  must  account  for  the  appearance  or  alteration.  He 
may  show  that  the  alteration  was  made  by  another  without  his 
concurrence,  or  was  made  with  the  consent  of  the  parties  affected 
by  it,  or  otherwise  properly  or  innocently  made,  or  that  the 
alteration  did  not  chans;e  the  meaning  or  language  of  the  in- 
strument. If  he  do  that,  he  may  give  the  writing  in  evidence, 
but  not  otherwise.^ 

§  967.  Consideration,  when  and  how  mnst  be  Alleged. 
Where  a  copy  of  the  insirument  declared  on  is  set  out  in  the 
complaint,  and  it  purports  to  be  for  value  received,  that  is  a 
sufficient  allegation  of  a  consideration."  In  California,  a  writ- 
ten instrument  is  presumptive  evidence  of  a  consideration,' 
In  declaring  upon  such  instrument,  it  may  be  unnecessary  to 
aver  a  consideration  if  the  instrument  set  out  expresses  one; 
but  if  none  is  expressed  on  the  face  of  the  instrument,  it  i<*; 
and  it  is  the  better  practice  in  all  cases  unless  upon  negotiable 
instruments.  Where  the  instrument  neither  expresses  a  consid- 
eration nor,  as  in  the  case  of  a  sealed  instrument  or  negotia- 
ble paper,  imports  one,  a  consideration  should  be  averred.* 
Where  the  instrument  requires  a  consideration  to  support  it, 
the  consideration  must  be  averred  in  the  complaint. ^  In  an 
action  on  a  written  instrument,  it  is  not  necessary  to  set  out  the 
consideration.*  In  Iowa  and  Indiana,  an  agreement  in  writing 
imports  a  consideration.'  In  a  sealed  instrument,  the  seal  im- 
ports consideration.®  So,  in  an  undertaking  to  answer  for  the 
debt  of  another.' 

§  968.  ConBtruction. — In  con<<truing  written  instruments, 
the  circumstances  under  which  they  were  written,  and  the  sub- 
sequent conduct  of  the  parties,  may  be  consulted.'"  Under  the 
code,  the  recitals  of  an  instrument  averred  in  a  complaint  to 
have  been  executed  by  the  defendant,  have  the  same  effect  as 
specific  averments  of  the  truth  of  the  facts  recitcd.^i  When  the 
plaintiff  sets  out  in  his  complaint  the  contract  sued  on  in  the 
terms  in  which  it  is  written,  and  then  puts  a  false  con- 
struction on  its  terms,  the  allegation  repugnant  to  its  terms 

1  CHlifornift  Code  Civil  Proc,  sec.  •  Sloan  v.  Gibxon,  4  Mo.  32;  Caples 

198:i.  V.  BrHtiham,  20  Id.  244. 

*  Jerome  v.  Whitnev,  7  Johns.  321 ;  '  T.uisley  v.  Olds.  6  Clnrk,  l=>26. 
Walrad  V.  Petrie,  4  Wend  575;  Prin-  »  McCnrtv  v.  Beach.   10   Cal.  461; 
die  V.  Caruihers,  15  N.  Y.  4vSd.  Willis  v.  Kempt,  17  Id.  98;  Clark  v. 

»  Cixii  Code.  sec.  1614.  Thorpe.  2  Bosw.  680. 

*  Spear  v.  Dowiiin?.  12  Ahb.  Pr.  487.  •  fiiish  v.  Slovens,  24  Wend.  2-'56. 

*  Prindle  v.  Crtruthera.  10  How.  Pr.  *"  McNeil  v.  Shirlev,  38  C^l.  202. 
83 ;  Joseph  V.  Holt,  37  C»L  250.  "  Slack  v.  Heaih,  1  Abb.  Pr.  331. 


422  FORMS  OF  COMPLAIUTa  §  969. 

should  be  regRrded  as  surplusage;^  and  where  a  declaration 
contains  an  averment  of  a  fact  deJiors  the  written  contract, 
which  is  in  itself  immaterial,  the  party  making  such  averment 
is  not  bound  to  prove  it.^  In  Massachusetts,  where  a  written 
agreement  has  been  executed  by  one  person  only,  by  which  he 
agreed  to  deliver  to  another,  upon  the  formation  of  a  coal  com- 
pany, and  when  the  certificate  should  have  been  issued,  a  cer- 
tain amount  of  the  stock  of  the  company,  and  the  agieeraent 
recites  tliat  the  person  who  was  to  receive  the  stock  agreed,  in 
consideration  thereof,  to  sell  a  certain  amount  of  the  stock  of 
the  company  at  a  specified  valuation,  and  collect  payment 
therefor,  a  declaration  in  an  action  against  the  signer  of  the 
agreement  is  demurrable,  which  does  not  allege  that  there  was 
a  consideration  for  the  defendant's  promise,  or  that  the  com- 
pany has  been  formed,  the  certificates  issued,  or  the  specified 
amount  of  stock  sold,  and  payment  therefor  collected  by  the 
plaintiff.' 

All  the  terms  of  the  promise,  including  the  kind  of  money  in 
which  the  payment  is  to  be  made,  are  to  be  ascertained  by  an 
inspection  and  construction  of  the  instrument.* 

§  969.  Date  of  an  Instrument. — In  pleading  a  written  in- 
strument, e.  g'.,  a  release,  if  the  only  materiality  of  the  date  is 
that  it  was  after  another  event,  it  is  sufficient  to  say  that  it  was 
so.  5 

§  970.  Delivery. — A  delivery  of  a  deed  need  not  be  stated 
in  a  pleading,  and  it  may  be  stated  to  have  been  made  on  a  day 
other  than  its  date.  Time  need  not  be  averred,  unless  it  be  the 
essence  of  the  contract.^  Tliat  an  instrument  was  executed, 
imports  a  delivery.'  The  delivery  of  a  promissory  note  is  suf- 
ficiently averred  by  implication,  and  indorsement  is  unneces- 
sary to  transfer  the  title.® 

§  971.  Executed  Implies  Subscribed. — An  averment 
that  an  agreement  was  "  executed,"  amounts  to  an  averment  that 
it  was  "  subspiibed  "  by  the  party  to  be  charged.^  If,  in  plead- 
ing a  deed  executed  by  a  married  woman,  the  pleader  states  that 
it  was  executed  by  attorney,  he  must  also  state  the  facts  which 

iLove  V.  S.  N.  L.  W.  A  M.  Co.,  •  Cro.  Eliz.  178;  Ashmore  v.  Rvp- 

82  Cal.  rt?.9;  Stoddard  v.  TreaiiwoU,  lev.  Cm.  Jac.  420;  Moore  v.  Jonns,  2 

26  Id.  800.  IxJ.  Rnyin.    1638;  Tompkins  v.  Cor- 

'  Wilson  T.  Codman's  Executors,  8  win,  9  Cow.  255;   BrinkerhoflF  v.  Law- 

Cranoh,  193.  rence.  2  Sandf.  Ch.  400. 

»  Muidoclc   V.    Caldwell,    8    Allea  '  Brii.kerhoff  v.  Lawrence,  2  Sandf. 

(Masi..).  309.  Ch.  400. 

*  Biirn.'tt  V.  Stearns,  33  Cal.  4fi8.  •PHrdv  v.  Vermilvea,  8  N.  Y.  846. 

»  Kellogo  V.  Baker,  16  Abb.  Fr.  286.  »  Cheney  v.  Cook,  1  Wis.  413. 


§  977.  NEGOTIABLE  PAPER,  BONDS,  ETC.  423 

make  the  case  one  in  which  such  mode  of  execution  is  valid,  or 
his  pleading  is  demurrable. ^ 

§  972.  Foreign  Language. — If  the  instrument  is  in  a  for- 
eign language,  it  is  sufficient  on  demuirer  to  set  forth  in  that 
language. 2  But  it  is  better  to  plead  it  according  to  its  legal 
effect. 

§  973.  Genmneneas  Deemed  A*^mittecl. — When  an  action 
is  brought  upon  a  written  instrument,  and  the  complaint  con- 
tains a  copy  of  such  instrument,  or  a  copy  is  annexed  thereto, 
the  genuineness  and  due  execution  of  such  instrument  shall  be 
deemed  admitted,  unless  the  answer  denying  the  same  be  veri- 
fied. ^  •  This  section  extends  only  to  those  parties  who  are 
alleged  to  have  "signed"  the  instrument.*  Therefore  if  the 
action  is  against  an  administrator,  the  genuineness  of  the 
signature  must  be  proved. ^  So  proceedings  which  are  void  by 
reason  of  the  infirmity  of  the  statute  under  which  they  are  had, 
are  not  cured  by  an  averment  in  a  complaint  that  they  were 
duly  and  legally  had  ;  and  a  failure  to  deny  the  averment  in  the 
answer  is  not  an  admission  that  the  proceedings  were  valid  or 
legal.  ^ 

§  974.  Identity, — Where  the  note  was  made  paya>ile  to  G. 
W.,  and  tlie  plaintiff  named  himself  as  Gilbert  W.,  it  was  held 
that  he  should  be  presumed  the  same  person.'  Where  the 
note  was  signed  in  the  name  of  one  of  the  partnership  "  & 
Co.,"  and  in  the  action  the  defendants  were  named  individually, 
it  was  held  sufficient.* 

§  975.  Indebtedness  ofDefendant.— If  a  complaint  should 
only  allege  that  defendant  was  indebted  to  plaintiff  in  a  named 
sum,  which  defendant  refused  to  pay,  it  would  be  insufficient. 
It  must  allege  the  facts  which  constitute  the  indebtedness.^ 

§  976.  IndDrsemsnt  of  Sealed  Instrument. — Axsumpsit 
may  be  brought  on  the  unsealed  indorsement  of  a  sealed  writing.^" 

§  977.  Interest  of  Parties. — Where  the  covenant  purported 
to  be  made  between  two  persons  by  name,  of  the  first  part,  and 
the  corpDr:ite  company,  of  the  second  part,  and  only  one  of  the 
persons  of  the  first  part  signed  the  instrument,  and  the  cove- 
nant ran  between  the  party  of  the  first  part  and  the  party  of  the 
second  part,  it  was  proper  for  the  person  who  had  signed  on  the 

». lohnstonv.  Taylor.  16  Abb.  Pr.  839.         »  Ms  rsb  all  v.  Rock  wood,  12    How. 

*  Nouniy  V.  Uubosty,  12  Abb.  Pr.      Pr.  4')2. 

128.  *  Butchers'   and   Drovers'  B  »'ik   v. 

«  ClHlifornia  Codo  C.  P.,  sec.  447.  Jjicobson,  15  Abb.  Pr.  218;  b.  C,  24 

*  Heath  V.  Lent,  1  Gal.  411.  How.  Pr.  201. 

»  Id.  »  I'iercy  v.  Sabin,  10  ChI.  28. 

*  People  V.  Hastings,  29  Cal.  449.  "  Cainphell  v.  Jordan,  Hemp.  534. 


424  FORMS  OF  COMPLAINTS.  §   978. 

first  part  to  sue  alone;  because  the  covenant  inured  to  the 
benefit  of  those  who  were  parties  to  it.^ 

§  978.  Issue  of  Warrant. — Averring  the  issue  of  a  warrant 
imports  a  seal,  if  the  case  is  one  in  which  a  seal  is  necessary. ^ 

§  979.  Lost  Instrument. — A  party  need  not  plead  loss  of 
an  instrument,  unless  it  be  a  negotiable  instrument  properly  in- 
dorsed.^  A  motion  to  make  a  pleading  more  definite  and  cer- 
tain, by  setting  forth  the  contents  of  a  written  instrument  relied 
on  by  the  pleader,  should  not  prevail  where  it  appears  that  the 
instrument  is  lost,  and  the  pleading  apprises  the  adverse  party  of 
the  nature  and  effect  of  the  instrument.* 

§  980.  New  Promise,  when  to  be  Alleged.  —In  Cali- 
fornia in  actions  upon  vrritten  instruments  for  the  payment  of 
money,  as  promissory  notes,  the  date,  being  shown,  shows  the 
period  when  the  right  of  action  accrues.  In  such  cases,  any  new 
promise  which  has  been  made,  renewing  or  continuing  the  con- 
tract, should  be  alleged. ^  In  Ohio,  this  provision  under  the 
statute  extends  to  accounts  and  other  instruments  "for  the  un- 
conditional payment  of  money  only.'*  But  a  judgment  can  not 
be  so  pleaded.^ 

§  681.  Promissory  Notes. — When  a  copy  of  the  promis- 
sory note  is  annexed  and  the  answer  is  not  verified,  the  due  ex- 
ecution and  genuineness  of  the  note  is  admitted.'  So  of  a  bond. 
And  if  the  complaint  contains  a  copy  of  the  written  instrument 
sued  on,  and  is  not  verified,  and  the  answer  denies  its  execution 
but  is  not  sworn  to,  the  note  is  admissible  in  evidence  without 
proof  of  the  genuineness  of  the  signature.® 

§  982.  Written  Instruments,  how  Proved. — An  instru- 
ment in  writing,  executed  and  attested  by  a  subscribing  witness 
in  a  foreign  country,  or  beyond  the  jurisdiction  of  the  court, 
can  be  proved  by  evidence  of  the  handwriting  of  the  paity  who 
executed  it.^  The  intent  of  the  statute  is  fully  carried  out  by 
excluding  parol  testimony  to  contradict  a  deed;  but  where 
parties  admit  the  real  facts  of  the  transaction  in  their  pleadings, 
these  admissions  are  to  be  taken  as  modifications  of  the  instru- 
ment,^" as  no  proof  is  required  of  facts  admitted  or  not  denied.^ 

»  Phil.  W.  JbB.  R.  R.  Co.  t.  Howard.  Horn  v.  Volcano  Wat.  Co.,  13  Id.  62 ; 

18  How.  (U.  S.)  808.  Kinney  ▼.  Osborne,  14  Id.  112. 

2  Beekman  v.  Traver,  20  Wend.  67.  •  Corcoran  v.  Doll,  32  Cal.  83 ;  Hora 

*  Mc'Clusky  V.  Gerhauser,  2  Nev.  47.  v.  Volcano  Wat.  Co..  13  Id.  62;  Sac- 

*  Kellogg  T.  Baker,  16  Abb.  Pr.  ramento  County  v.  Bird,  Id.  66;  Bur- 
286.  nett  v.  Stearns.  33  Id.  468. 

*  Smith  V.  Richmond,  19  Cal.  481.  »  McMinn  v.  Whelan,   27  Cal.   300. 

*  Memphis  Med.  College  v.  Newton,  *°  Lee  v.  Evans,  8  Cal.  424. 
2HftMdv,  163.  "  Patterson    v.    Ely.    19   Cal.  28; 

>  Burnett  v.  Stearns,  83  Cal.  468;    Lauders  t.  Bolton,  26  Id.  416. 


§  984.  NEGOTIABLE  PAPER,  BONDS,  ETC.  426 

Where  a  written  instrument  is  made  part  of  the  complaint  with 
both  the  first  and  second  counts,  and  in  the  second  count  is 
referred  to  as  already  on  file  with  the  former,  the  latter  will  be 
sufl3cient.i  The  legal  effect  of  written  documents  offered  in 
evidence  is  a  question  for  the  court  and  not  for  the  jury.^ 

§  983.  Sealed  C3ntract  —Allegations  in  Actions  on. — 
Where  the  sealing  of  an  instrument  is  sufl3cient  according  to 
the  laws  of  a  state  in  which  it  was  made,  the  remedy  upon  it  in 
a  state  in  which  such  mode  of  sealing  is  not  sufficient,  must  be 
according  to  the  law  of  the  latter  state,  instead  of  the  former. 
Thus,  in  New  York,  an  action  on  a  deed  sealed  with  a  scroll, 
must  be  an  action  appropriate  to  unsealed  instruments.^  An  im- 
pression of  the  seal  of  a  corporation  stamped  upon  the  paper 
on  which  a  mortgage  of  the  corporation  is  written,  is  a  good 
seal,  although  no  adhesive  substance  is  used.'*  In  declaring  on 
a  specialty,  it  must  be  averred  that  it  was  sealed  by  the  defend- 
ant. Setting  it  forth,  with  its  conclusion,  that  it  was  signed  and 
sealed  with  the  name  of  tlie  defendant  and  with  an  L.  S.,  is  not 
sufficient ;5  although  "indenture"  "deed,"  "writing  obliga- 
tory," were  held  to  import  a  seal.^  The  delivery  of  a  specialty, 
though  essential  to  its  validity,  need  not  be  staled  in  a  plead- 
ing. It  is  enough  to  allege  that  it  was  made  by  the  defen  lant 
as  that  implies  delivery.'  Wiiere  the  law  requires  an  instru- 
ment to  be  under  seal  to  authorize  a  particular  remedy  thereon, 
it  is  necessary  to  state  tliat  it  is  under  seal.  But  where  it  is 
wholly  immaterial  whether  the  instrument  was  or  was  not  under 
seal,  an  averment  that  it  was  in  writing  is  supported  by  the  pro- 
duction of  a  written  instrument,  either  with  or  without  a 
seal  attached. 8  In  California  all  distinctions  between  sealed  and 
unsealed  instruments  are  abolished.' 

§  984.  Subscription  by  Agent. — ^The  word  "  agent,"  ap- 
pended to  the  signature  of  the  agent,  is  not  mere  descriptio 
personcB.     It  is  the  designation  of  the  capacity    in  which  he 

>  PpoTc  v.  HphsIpv,  21  Ind.  344.  1  Ch.  PI.  109 ;  Van  Santwood  v.  Sand- 

X^Hrpeiiter  v.  Thurston,  24  Cal.  268.  ford,12  John?.  197 ;  Mitcoinb  V.  Tli..mp- 

•  Warren  v.  Lvnch,  6  .Johns.  2:^9;  son,  14  Id.  207.  To  much  ihe  same 
Van  Santwood  v.  Sandford,  12 Id  198;  etfect:  Staunton  v. Camp.  4  Ba:b.  274. 
Colt  V.  Milliken,  1  Den.  '676;  Andnws  •  Cabell  v.  Vaui,'hHn,  1  SHiind.  291, 
V.  Herriot,  4  Cow.  508;  4  Kent.  451  ;  Phillips  v.  Clil't,  4  Hurlst.  &  N.  168. 
U.  S.  Bank  v.  Donnally,  8  Pet.  3'i2;  »  i  (jh.  Pi.  348;  Cabell  v.  Vaughan, 
Story's  Confl.  of  L.  47;  Thrasher  v.  1  Saund.  291  ;  Marshall  v.  Rockwood, 
Everett,  3  (iiil  &  J.  234;  Douglass  v.  12  How.  Pr.  462;  Lalayetle  insuraace 
Oldham,  6  N.H  150.  Co.  v.  R.-ijers,  30  Barb    491. 

*Hendee    V.   Phikertoo,   14  Allen        *  Jenkins  v.  Pell.  20  Wend.  450l 
(Mfl«!'.).  381.  'Civil Code,  seu  iti29. 

*  Cauuli  V.  Yaugban,  1  Saund.  291 ; 


426  FORMS  OF  COMPLAINTS.  §  985. 

acted. ^  Where  a  contract  purported  upon  its  face  to  have  been 
made  by  an  agent,  and  it  is  set  fortli  in  full  in  the  complaint,  it 
must  be  alleged  that  the  agency  was  duly  constituted.^ 

§  985.  Writing  Implied. — An  award  set  forth,  "as  in  the 
form  following,"  and  with  a  date,  may  be  presumed  to  have 
been  in  writing. ^  When  the  terms  and  conditions  of  an  agree- 
ment are  set  out  in  a  comi)laint,  and  the  violation  of  that  agree- 
ment is  charged  against  the  defendant,  if  it  is  such  an  instru- 
ment as  the  law  requires  to  be  in  writing,  and  the  complaint  is 
silent  whether  it  was  oral  or  in  writing,  courts  will  presume  it 
was  a  lawful  written  instrument,  until  the  contrary  appears.'* 

§  986      On  a  Bond  for  the  Payment  of  Money  Only. 

Foim  Jio.  ass. 
[Titlk] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at , 

the  defendant  covenanted  with  the  plaintiff,  under  his  hand  and 

seal,  to  pay  to  the  plaintiff  the  sum  of dollars. 

IL  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[DkMAND  or  JUUQMKNT.] 

§  987.  Breach,  how  Alleged. — It  is  not  alone  sufficient  to 
show  a  technical  breach  of  the  literal  terms  of  a  covenant  in  a 
bond ;  but  upon  a  reasonable  interpretation  of  the  intent  and 
meaning  of  the  covenant,  to  be  ascertained  from  all  its 
terms,  it  must  likewise  appear  that  some  substanlial  right 
guaranteed  thereby  has  b  een  infringed,  or  some  of  its  purposes 
defeated.®  It  is  suggested  that  specific  breaches  should  be 
assigned,  even  on  a  m6re  money  bond.'  In  California,  where 
the  contract  or  bond  was  for  payment  in  gold  coin,  it  must  be 
averred,  and  judgment  demanded  accordingly. 

§  988.  Mutilated  Bond. — If  the  obligee  tear  off  the  seal 
or  cancel  a  bond,  in  consequence  of  fraud  and  imposition  prac- 
ticed by  the  obligor,  he  may  declare  on  such  mutilated  bond  as 
the  deed  of  the  party,  making  a  proper  averment  of  the  special 
lacts.8 

§  989.  What  Written  Oblie^ation  Imports.— The  term 
**  written  obligation  "  imports  a  sea.ed  instrument.^    Under  the 

^Sayrev.Nichols,  7Cft1.585;  seeTol-  sufficient  to  chars^e  n  eflrnntor,   see 

mie   V.  Demi,    Wash.  Terr.  46.     That  TnppMii    v.   Cleveland    R.  K.  Co.,    4 

"executed"  implies  "sub^rribed,"  see  A>  'st.  Law  Month.  67. 

Cheney  v.  Cock,  7  Wis.  413.  •  Leviisky  v.  Johnson,  3-5  Cal.  41. 

»  liegt  nts  V.    Detroit    Society,    12  '  VN'estt  ru  Bank    v.  Sliei  wood,   29 

Mich.    l;;8.  Barl^.  388. 

«  Munro  V.  Alnire,  2  Cai.  820.  «  3  1".  K.  153 ;  United  States  v.  Spald- 

*  Van  D.>ien  v.  Tiader,    1  Nev.  380.  ire:.  2  .\l«si«ii  t'ir.  (;i.  478. 

•  V\  hat    aNeiiiieutii  ou  a  boud  are  *  Ciurk  v.  i'uilli^s,  Hcuipst.  294. 


i  993.      NEGOTIABLE  PAPER,  BONDS,  ETC.        427 

statutes  of  California,  bonds  are  on  the  same  footing  as  under- 
takings.^ 

§  990.  On  a  Bond— Pleading  It  according  to  its  Legal 
Effect. 

Form  No.  t54» 

[TfTLTt] 

The  plaintiff  complains,  and  alleges : 

I.  Thiit  on  the  day  of  ,  18...,  at   , 

the  defendant  covenanted  with  the  plaintiff,  under  ins  hand 
and  seal,  to  pay  to  the  plaintiff  the  sum  of  [state  the  actual 
debt],  in  gold  coin,  on  tlie  day  of  ,  with  in- 
terest from,  etc.  [or  otherwise,  accordingf  to  the  condition] . 

H.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 
[Djcmand  of  Judgmkni.] 

§  991.    By  a  Surviving  Obligee,  on  a  Joint  Bond. 

Form  Au.  255, 

[TiTLK.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on day  of ,  18....,  at ,  the 

defendant  made  and  sealed  his  certain  bond,  of  which  the  fol- 
lowing is  a  copy  [copy  the  bonl],  and  thereby  covenanted  with 

the  plaintiff  and  one   R.  N.  to   pay  them  the  sum  of    

dollars  [on,  etc.,  stating  when  it  became  payable]. 

II.  That  on  the day  of ,  18...,  at , 

said  R.  N.  died. 

III.  That  no  part  thereof  has  been  paid. 

[Dbmand  of  Judgmknt.] 

§  992.  Averment  of  Death  of  Joint  Obligee. — One  of 
two  joint  obligees  can  not  sue,  unless  he  avers  that  the  other  is 
dead.  Wherever,  by  reason  of  a  several  interest,  one  may  sue, 
he  must  set  forth  the  bond  truly,  and  then  by  proper  averments 
show  a  cause  of  action  in  himself  alone. ^ 

§  993.  Joint  aad  Ssveral  Bonds.— No  recovery  can  be 
had  on  a  bond  purporting  to  be  the  joint  b  )nd  of  the  principal 
and  sureties,  but  signed  by  the  latter  only.^  It  is  otherwise  as 
to  a  joint  and  several  bond,  w  lere  each  signer  is  considered 
bound  without  the  signature  of  the  others  named  as  obligors.* 
Where  a  complaint  is  against  two  or  three  obligors,  it  mast 
aver  that  all  three  have  failed  to  pay  the  debt.^  Ua  ler  the 
statute  of  Indiana,  the  representatives  of  a  deceased  joint 
obligor  may  be  sued  on  a  joint  and  several  obligation.^    A  dec- 

1  Canfleld  v.  Bates.  \^  Cal.  606.  *  Sacramento  v.  Dimlan  1 1  C-^l.  421. 

«  Mile  V.  Pura.\,«  W»Mid.ti29.  »  Kobiiis   v.  Pope,  Hempr.  219 

*  Sauratueuio  v.  DuuUp,  14  Ual.  421.         *  (Jurus  v.  Bowrie,  t  ju.utiuau,  87i. 


428  FORMS  OF  COMPLAINTS.  §  994. 

laratfon  in  an  action  of  debt  against  the  obligor,  setting  forth  a 
joint  and  several  bond,  can  not  be  annulled  by  adding  a  new 
count,  setting  forth  a  bond  hy  the  defendant  and  another  per- 
son.* 


CHAPTER  II. 

BILLS  OF  BXOHANGB. 

§  994.  Foreign  Bills— Payee  against  Drawer  for  Non- 
acceptauce. 

Form  No.  SSS, 
[Trrr.i!] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at  ,  the 

defendant  made  and  delivered  to  the  plaintiff  his  certain  bill  of 
exchange  of  that  date,  of  which  the  following  is  a  copy  [copy 
the  bill]  : 

II.  That  on  the day  of ,  18...,  the  same  was 

duly  presented  to  the  said for  acceptance,  but   was  not 

accepted,  and  was  thereupon  duly  protested  for  non-accepiance. 

III.  That  due  notice  thereof,  was  given  to  the  defeudaut. 

IV.  Tliat  he  has  not  paid  the  same. 

V.  That  the  value  of  a  similar  bill  of  exchange  at  the  time  of 

said  protest,   in ,  that  being  the  place    wliere   said    bill 

was  negotiated,  and  where  such  bills  were  currently  sold,  was 
dollars. 

Wherefore  the  plaintiff  demands  judgment  against  the  de- 
fendant for  the  sum  of  dollars    [the    amount  named   in 

the   bill],  and  dollars    damages,    and    interest    on   said 

sums  from  the  day  of  ,  18...    [date  of  protest], 

and  costs  of  suit  "^ 

§  995.  DaSnitlon. — A  bill  of  exchange  drawn  in  one  state 
upon  a  person  in  another,  is  a  foreign  bill.'  And  such  bills  are, 
by  the  custom  of  merchants,  protested  if  dishonoi-ed.* 

§  966.  Alteration. — If  a  person  who  has  no  authority  to  do 
so,  and  who  is  not  the  agent  of  the  payee  for  that  purpose, 
writes  across  the  face  of  a  draft,  payable  generally  in  money, 
the  words,  "payable  in  United  States  gold  coin,"  it  is  not  such 
an  alteration  of  the  draft  as  vitiales  it.^    An  alteration  is   ma- 

'  Postmaster  General  v.  Ridgewny,  Biickner  v.  Finlpy,  2  Id.  58*5;  Bank 

Giip.  135.  of  United  Suies  v.  Daniel;  12  Id.  32. 

*  Tne  fifth  parawfHph  above  is  drnwn  *  Townsley  v.  buinrall,  2  Pet.  170. 

under  section  '6266  of  iho  CHliforuia  '  Ijangenbertjer  v.  KiDeir^r,  48  Cal. 

Civil  Code.  147  ;  see,  also,  kkiul  v.  Lraig,  5U  barb. 

SDiciieu*  V.  Beal,    10  PeU   672:  819. 


§  999.  BILLS  OF  EXCHANGE.  420 

terial  and  vitiating  which,  in  any  event,  may  alter  the  pron*- 
isorls  lial)iliiy,  if  made  without  his  consent  at  the  time,  unless 
subsequently  approved  by  him.^  Erasing  tlie  words  "  to  ordei 
of,"  and  inserting  "or  bearer"  instead,  is  material,  and  avoids 
the  note  ^  In  such  case  -it  matters  not  whether  the  alteration 
was  with  fraudulent  intent  or  not,  except  as  such  intention 
affects  the  riglit  to  resort  to  the  original  indebtedness. ^ 

§  997.  Damages  on  Foreign  Bills,  Protested. — In  Cali- 
fornia, damages  are  allowed,  as  a  full  compensation  for  interest 
accrued  before  notice  of  dishonor,  re-exchange,  expenses,  and 
all  other  damages,  in  favor  of  holders  for  value  only,  upon  bills 
of  exchange  drawn  or  negotiated  in  that  state,  and  protested 
for  non-acceptance  or  non-payment,  as  follows:  1.  If  drawn 
upon  any  person  in  this  state,  two  dollars  upon  each  one  hun- 
dred of  the  principal  sum  specified  in  the  bill;  2.  If  drawn 
upcm  any  person  out  of  this  state,  but  in  an\'  of  the  other  states 
west  of  the  Rocky  Mountains,  five  dollars  upon  each  one  hun- 
dred ;  3.  If  drawn  upon  any  person  in  any  of  the  United  States 
east  of  tlie  Rocky  Mountains,  ten  dollars  upon  each  one  hun- 
dred ;  4.  If  drawn  upon  any  person  in  any  foreign  country, 
fifteen  dollars  upon  each  one  hundred.'* 

§  998.  Demand. — If  a  draft  does  not  specify  the  kind  of 
money  in  which  it  is  made  payable,  a  demand  of  payment  in 
gold  coin,  whether  by  a  notary  or  the  holder,  is  not  sufficient 
to  cliarge  the  drawer.  The  demand  must  be  in  accordance 
with  the  tenor  of  the  draft.*  In  the  absence  of  evidence  to  the 
contrary,  the  presumption  is  that  the  notary  demands  payment 
in  the  kind  of  money  in  which  it  appears  on  its  face  to  be  made 
payable.^ 

§  999.  Dishonor. — In  California  a  bill  of  exchange,  payable 
a  certain  time  after  sight,  which  is  not  accepted  within  ten 
days  after  its  date,  in  addition  to  the  time  which  would  suflflce, 
with  ordinary  diligence,  to  forward  it  for  acceptance,  is  pre- 
sumed to  have  been  dishonored."^  A  negotiable  instrument  is 
dishonored  when  it  is  either  not  paid  or  not  accepted  accord- 
ing  to  its   tenor,  on  presentment  for  that  purpose,  or  without 

>  Langenberger  v.  Kroeger,  48  Cal.  *  Civil   Code,  sees.  3234.  3235 ;  see, 

147 ;  see,  also,  Flint  v.  Craig,  69  Barb,  also,  Pratalongo    v.  Larco,    47    Cal. 

819.  378,  as  to  who  is  the  holder  in  the 

*  Booth  V.  Powers,  56  N.  Y.  22.  sense  of  the  statute. 

'  Id. ;   see.  also,  Meyer  v.  Huneke,  *  Langenberger  t.  Kroeger,  48  Cal. 

65   N.  Y.  412;   reversing   S.    C,   66  147. 

Barb.  804 ;  Seibel  t.  Vaughan,  69  111.  •  Id. 

257;Beal  v.  Roberts,  118  Mass.  625;  » Civil  Code     of    California,    sec. 

Evans  v.  Foreman,  60  Mo.  449;  Good-  8133. 
speed  V.  Cutler,  76  111.  634. 


430  FORMS  OP  COMPLAINTS.  §   1000. 

presentment,  where  that  is  excused.^  Although  a  check  may 
be  actually  dishonored  by  a  refusal  to  pay  upon  proper  demand 
before  presumptive  dishonor,  yet  to  charge  the  check  with  the 
infirmity  of  dislionor  in  the  hands  of  a  third  party  to  whom  it 
has  been  transferred  for  a  valuable  consideration  before  the 
expiration  of  the  reasonable  time  which  must  elapse  before  pre- 
sumptive dishonor,  notice  of  the  previous  actual  dishonor  must 
be  brought  home  to  him,  or  he  holds  it  free  from  the  taint  of 
dishonor.^ 

§  1000.  Difference  of  Exchange. — On  a  bill  of  exchange, 
payable  at  a  particular  place,  it  seems  that  the  difference  of 
exchange  may  be  recovered,  if  the  declaration  contains  the 
proper  averment;  but  this  is  not  the  rule  where  the  action  is  on 
a  note,  and  there  is  no  count  or  allegation  in  the  declaration  to 
cover  the  rate  of  exchange. ^ 

§  1001.  Non-Payment. — In  a  declaration  on  a  foreign  bill 
of  exchange  for  non-payment,  no  averment  of  a  presentment 
for  acceptance,  or  of  a  refusal  and  protest  for  nou-acceptance 
of  the  bill  is  necessary.* 

§  1002.  Notice  of  Dishonor. — Notice  of  dishonor  may  be 
given  by  a  holder,  or  by  any  party  to  the  instrument  who  might 
be  compelled  to  pay  it  to  the  holder,  and  who  would,  upon 
taking  it  up,  have  a  right  to  reimbursement  from  the  party  to 
whom  the  notice  is  given. ' 

§  1003.  Omission  of  Demani  and  Notice. — The  omission 
of  demand  and  notice,  when  it  can  not  possibly  operate  to  the 
injury  of  the  indorser  of  a  note  or  drawer  of  a  bill,  does  not 
discharge  him ;  but  the  mere  insolvency  of  the  maker  does  not 
excuse  neglect  in  presenting  it.' 

§  1004.  Protest,  when  Necessary. — Protest  of  a  domestic 
note  is  unnecessary.'  A  bill  of  exchange  drawn  in  one  state 
upon  a  citizen  in  another  state  is  a  foreign  bill,  and  protest  is 
necessary  to  charge  the  indorser.^ 

S  1005.  Waiver  of  Demand. — A  promise  by  an  indorser 
after  notice  of  non-payment  of  a  note,  and  with  full  knowledge 
of  all  the  circumstances  attending  presentment  and  demand,  to 
pay  the  note  or  give  a  new  one,  will  constitute  a  waiver  of  any 

1  Civil  Code,  »ec.  3141.  »nd  notice,  see  Id.,   sees.  315.'5-S160; 

'  Himmelmann  ▼.  Uutaling,  40  Cal.  see,   also,   Himmelmann  v.  Hotaliog, 

111.  40  Cal.  111. 

«  Weed  v.  Miller,  1  McLean,  423.  •  Smith  v.  Miller,  52  N.  Y.  545. 

*  Brown  v.  Brtrry,  3  Dall.  365.  ^  Brennan  v.  Lowry,  4  Duly,  253. 

»  Civil  Code,  sec.  3142.    For  service  •  Commercial  Bank  of  Jientuckj  T, 

of  notice  see    Id.,    sees.     8144-3151.  Vanmra,  49  N.  Y.  269. 
Aa  to  what  will  excuse  preneuiiiieiit 


§   1011.  BILLS  OF  EXCHANGE.  431 

irreg^ularities  in  presentinnj  or  demanding  the  same,  and  even  of 
presentment  and  demand  itself.^ 

§  1006.  Parties. — An  agent  to  whom  a  bill  of  exchange  has 
been  indorsed  in  blank  for  collection,  may  fill  up  the  assignment 
to  himself,  and  bring  suit  in  his  own  name.^ 

§1007.    Payee  against  Acceptor. — 

Form  No.  257. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18  ...,  at , 

the  defendant  made  and  delivered  to  the  plaintiff  his  certain  bill 
of  exchange  of  that  date,  of  which  the  following  is  a  copy  [copy 
the  bill]. 

II.  That  on  the day  of ,  18  ...,  at y 

the  defendant  accepted  the  said  bill. 

III.  That  he  has  not  paid  tlie  same,  nor  any  part  thereof. 

[Dkmand  of  Judgment.]* 

§  1008.  Acceptance. — In  an  action  against  B,,  as  sole  ac- 
ceptor of  a  bill  of  exchange,  the  plaintiffs  were  entitled  to  re- 
cover under  a  count  in  the  declaration,  stating  the  bill  to  have 
been  drawn  on  "  B.  «&  Co.,"  and  to  have  been  accepted  by  B.,  by 
the  name  and  style  of  "  B.  &  Co.,"  by  writing  the  name  of  "  B. 
&  Co."  thereon.-* 

§  1009.  Letter  of  Credit. — A  letter  of  credit,  promising 
unconditionally  to  accept  bills  drawn  upon  its  faith,  is  an  actual 
acceptance  in  favor  of  a  person  who,  upon  its  faith,  receives  a 
bill  so  drawn  for  a  valuable  consideration.* 

§  1010.  Promise  to  Indorse. — A  promise  to  indorse  under  a 
letter  of  credit  representing  a  person  to  be  good,  and  saying  that 
the  writer  will  indorse  for  him  on  a  purchase  to  a  certain  amount, 
the  writer  is  not  liable  directly  for  the  amount  of  a  sale  without 
any  request  to  indorse,  and  unless  an  indorsement  is  required  no 
action  can  be  maintained.* 

§  10 1 1.  On  Inland  Bills— Drawer  against  Acceptor  for 
Non-payment. 

Farm  No.  t58, 

[TlTLB.] 

The  plaintiff  complains,  and  alleges; 

I.  That  on  the day  of ,  18  ...,  at ..., 

*  Mevor  v.  Hibshnr,  46  N.  Y.  2o5;  1  Blatchf.  438:  compare  Lapeyre  v. 
Richard  v.  Boiler,  51  How.  Pr.  87 J.        Gales,  2  Cranoh  C.  Ct.  291. 

*  Orrv.  Lacy,  4  McOlean,  243.  '  Naglee  v.  Lymaa,  14  Cal.  4-50. 

3  To  recover  statutory  damages,  see  •Stafford  v.  Low,  16  Johns.  67; 
precpdins:  form.  Stockbridge  V.  Schooamaker,  45 Barb. 

*  City  Bank  of  Columbus  t.  Beach,    100. 


432  FORMS  OF  COMPLAINTS.  §   1012. 

the  defenrJant  marie  and  delivered  to  the  plaintiff  his  certain 
bill  of  exchange  of  that  date,  of  which  the  following  is  a  copy 
[copy  of  the  bill]. 

II.  That  the  defendant  thereafter  accepted  the  said  bill. 

III.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgmknt.] 

§  1012.  Acceptance. — A  promise  that  a  drawer  will  pay  a 
draft  which  may  be  drawn  on  him,  is  an  acceptance,  and  he 
may  be  sued  as  acceptor.^  An  unconditional  promise,  in  writ- 
ing, to  accept  a  bill  of  exchange,  is  a  sufficient  acceptance 
thereof,  in  favor  of  every  person  who  upon  the  faith  thereof 
has  taken  the  bill  for  value  or  other  good  consideration.''  If 
the  bill  is  payable  at  a  certain  time  after  "sight,"  the  date  of 
acceptance  should  be  stated ;  otherwise  it  is  not  necessary.  A 
bill  drawn  payable  so  many  days  after  sight,  means  after  pre- 
sentment for  acceptance. 3 

§  1013.  Acceptor. — A  person,  not  personally  a  party  to  a 
bill  of  exchange,  who  for  a  consideration  accepts  the  same,  is 
an  acceptor,  equallj'  as  if  he  were  drawee.*  The  loss  of  the 
acceptance  by  the  drawee  is  a  sufficient  consideration  for  the 
acceptance  by  the  third  person. ^ 

§  1014.  Corporatioas. — Where  a  draft  is  drawn  by  the  pres- 
ident and  secretary  of  a  corporation  upon  its  treasurer,  no 
notice  of  presentation  and  non-payment  is  necessary  to  hold 
the  corporation.^  The  burden  of  proof  is  on  the  corporation  to 
show  that  the  drawee  was  provided  with  funds  and  ready  to 
pay  at  matuiity,  in  order  to  exempt  them  from  damages  and 
costs.''' 

§  1015.  Equities  between  Parties. — Where  a  creditor 
takes  a  bill  before  maturity,  as  collateral  security  for  an  ante- 
cedent debt,  if  there  be  any  change  in  the  legal  rights  of  the 
parties,  the  creditor  becomes  the  holder  for  value,  and  the  bill 
is  not  subject  to  the  equities  between  the  parties.^ 

§  1016.  Form  of  Bill. — The  following  written  order  pos- 
sesses all  the  requisites  of  an  inland  bill  of  exchange:  "Mr. 

»  Wakefield  v.  Greenwood,  29  Cal.  *  Kelly  v.  Lynch,  22  Cal.  681. 

597.  » Id. 

'  Civil  Code,  spc.  3197.    As  to  how  •  Dennis  v.  Table  Mountain  Watei 

aoceptanoe  is  made,   who  entitled  to,  Co..  10  Cal.  369. 

what    sufficient,    acceptance  by  sep-  ^  Wolcott,  etc.,  v.   Van  Santvoord, 

arate    instrument,    what     acceptance  17  Johns.   248;  Fairchild  v.  Ogdens- 

admits,   and    cancellation   of   accept-  bursjh.  Clayton    &  Home  E.  R.  Co., 

ance,  see  (jivil  Code  (Cal.),  sec.  3193,  15  N.  Y.  33"7. 

and  (ollnwinw.  *  NHglee    v.    Lyman,  14  Cal.   450; 

^  Mitchell  V.  Degrand,  1  Mason,  175.  Bobinson  v.  Smith,  Id.  95. 


§   1019.  BILLS  OF  EXCHANGE.  433 

Please  pay  the  bearer  of  these  lines dollars, 

and  charore  the  same  to  my  account."  ^  The  following  document 
is  a  negotiable  bill  of  exchange:  "July  15,  1865.  On  first  of 
August  next,  please  pay  to  A.,  or  order,  £600,  on  account  of 
moneys  advanced  to  me  by  the  S.  Company.  To  Mr.  W.,  Offi- 
cial Liquidator  of  the  Company."'^  The  words  "or  order," 
"or  bearer,"  in  notes,  bills  and  checks,  are  words  of  negotia- 
bility, and  the  use  of  either  of  them  makes  the  paper  negotiable, 
although  impersonal  words  are  used  in  naming  a  payee. ^  The 
insertion  of  the  word  "please"  does  not  alter  the  character  of 
the  instrument.'*  "Value  received  "  is  not  necessary  to  show  a 
consideration. 5 

§  1017.  Satisfaction  of  Demand. — A  bill  of  exchange 
operates  only  as  a  conditional  payment,  but  if  the  creditor  fails 
to  pres  mt  it  for  payment  to  the  drawee,  it  becomes  ^yo  tanto  a 
satisfaction  of  the  demand.^ 

§  1018.  Who  May  Recover. — A  bill  indorsed  to  the  treas- 
urer of  the  United  States  may  be  sued  and  declared  on  in  the 
name  of  the  United  States,  and  the  averment  that  it  was  indorsed 
to  them  immediately  is  good.'''  Where  the  complaint  stated  the 
bill  drawn  on  "  B.  &Co.,"  and  to  have  been  accepted  by  B.  by 
the  name  and  style  of  B.  &  Co.,  by  writing  the  name  of  B.  &  Co., 
the  plaintiff  may  recover.^ 

§  1019.  The  Satna— On  a  Bill  Payable  to  Drawer's 
Own  Order,  and  not  Negotiated. 

Form  No.  259, 
[Title.] 

The  plaintiff  complains,  and  alleges  : 

I.  That  on  the day  of ,  18...,  at ,  the 

plaintiffs  [under  their  firm  name  of  A.  B.  C.  &  Co.],  by  their  bill 
of  exchange,  required  the  defendant  to  pay  to  the  order  of  the 

plaintiffs dollars, days  after  date  thereof  [or 

otherwise].  A  copy  of  which  said  bill  of  exchange  is  hereto 
attached  and  made  part  of  this  complaint. 

II.  That  on  the  day  of ,  18...,  the  defendant 

accepted  the  bill. 

III.  That  he  has  not  paid  the  same,  nor  any  part  thereof, 

[Dkmaxd  of  Judomknt.] 

»  Whpatley  v.  Strobe,  12  Cal.  92.  »  Benjamin  v.  Tillman,  2  McLean, 

•ariffin  V.  Weatherby,  L,  K.,  3  Q.  213. 

B.  tSS.  «  Brown  v.  CronisP,  21  ChI.  3S6. 

»  Mechanics'    Bank  v.    Straiton,    5  ^  u,  S.  v.  Bari<er,  1  P:aiie  U.  S.  156. 

Abb.  Pr,  N.  S.,  11.  «Citv  Bank  of  Columbus  v.  BeacK, 

*  Wheatley     v.     Strobe,     12    Cal.  1  Blatchf.  433.     Compare  Lupe^re  v. 

92.  Gales,  20ranch  C.  0.  291. 
EsTBB,  Vol.  1—28.  * 


434  FORMS  OF  COMPLAINTS.  §   1020. 

§  1020.    The  Same— Bill  Returned  and  Taken  Up, 

Form  No.  260. 

[TlTLW.] 

The  plaintiff  complains,  anr!  alleges : 

I.  That  on  the day  of  ,  18...,  at ,  the 

-plaintiff,  by  his  bill  of  exchange,  required  the  defendant  to  pay 

to  one  A.  B dollars,  days  after  the  date  thereof. 

A  copy  of  which  bill  of  exchange  and  the  acceptance  thereon  in- 
dorsed, is  hereto  attached  and  made  part  of  this  complaint. 

H.  That  on  the day  of.. ,  18...,  at , 

the  defendants,  upon  sight  thereof,  accepted  the  same  for  value 
received. 

III.  That  at  maturity  the  same  was  presented  for  payment, 
but  was  not  paid. 

IV.  That  on  the day  of ,  18...,  the  same  was 

returned  to  the  plaintiff  for  non-payment,  and  the  plaintiff,  as 
drawer  thereof,  was  then  and  there  compelled  to  take  up  the  same 

and  to  pay  to   the  holder  thereof  the  sum  of dollars, 

being  the  amount  of  said  bill,  with  damages  and  interest. 

V.  That  no  part  of  the  same  has  been  repaid. 

[Demand  or  Judgment.] 

§  1021.  Payable  to  Third  Persons.— When  the  drawer 
eues  on  a  bill  payable  to  a  third  person,  it  is  necessary  to  state 
.that  it  was  dishonored,  taken  up,  and  paid  by  the  plaintiff.^ 

5  1022.  SiifBcient  Averment. — A  complaint  against  the 
drawees  of  a  bill,  alleging  that  they  had  refused  to  accept,  and 
that  they  had  a  settlement  of  accounts  with  the  drawers,  and 
that  on  such  settlement  the  drawers  had  in  their  hands  suffi- 
cient money  to  pay  the  bill,  which  they  had  agreed  to  pay,  is 
sufficient.^ 

g  1023.    By  Acceptor,  without  Funds,  against  Drawer. 

Form  No.  S61. 
[Title] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,   18...,  at  , 

the  defendant  became  indebted  to  him  for  motiey  advanced  by 
him,  and  paid  by  him,  upon  a  certain  draft  drawn  by  the  defend- 
ant, bearing  date  on  the day  of ,  18...,  whereby 

the   defendant  requested   the  plaintiff    days  after  date, 

to  pay  to  one  A.  B.  the  sum  of dollars. 

II.  That  on  the day  of  ,  18..,  at , 

the  plaintiff  accepted  said  draft,  and  paid  it. 

»2Chit  PI.  148. 

«  Mittenbeyer  v.  Atwood,  18  How.  Pr.  830. 


§  1026.  BILLS  OP  EXCHANGK  435 

[O  •  II.  That  the  plaintiff  accepted  said  draft,  and  paid  the 
same  at  maturity.] 

III.  That  at  the  time  of  the  acceptance  and  payment  of  said 
dra't.  tlie  plaintiff  was  without  funds  of  the  defendant  in  his 
hand-)  to  m^^et  the  same. 

IV.  That  defendant  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  JcDOMBjfT.] 

§  1024.  The  Sam 3 — By  a  Copartnership  Firm  against 
Another  Firm,  on  a  Draft  Acceptad  and  Paid  by  Plaint- 
iffs 

Form  No  268. 

[TiTLK.] 

The  plaintiffs  complain,  and  allege: 

I.  Tliat  on  the day  of ,  18...,  the  defend- 
ants, then  composing  the  firm  of  C.  D.  &  Co.,  drew  their  cer- 
tain bill  of  exchange,  in  said  copartnership  name,  at , 

and  directed  the  sane  to  the  plaintiffs  at ,  who  then 

were  and  now  are  copartners,  doing  business  under  the  firm 
name  of  A.  B.  &  Co.,  by  which  bill  of  exchange  the  said  de- 
fendants requested  the   plaintiffs  to  pay  to  the  order  of  said 

defendants,  four  months  after  date,  the  sum  of dollars, 

for  value  received. 

II.  That  said  bill  of  exchange  the  plaintiffs  afterwards  ac- 
cepted and  paid  in  f u  1. 

III.  Tliat  no  funds  were  provided  by  said  defendants,  either 
before  or  after  the  same  was  drawn  as  aforesaid  for  the  payment 
thereof,  and  the  plaintiffs  have  had  no  funds  of  said  defendants 
at  auy  time  in  their  hands  to  pay  the  same. 

[Demand  of  Judgment.] 

§  1025.  Payee  against  Drawer,  for  Non-acceptance. 

Foi-m  No  263. 

[TlTLE.J 

The  plaintiff  complains,  and  alleges: 

J.  That  on  the  day  of ,  18...,  at ,  the 

defendant,  by  his  bill  of  exchange,  required  one  C.  D.  to  pay 
to  the  plaintiff dollars  [ days  after  sight]. 

II.  That  on  the day  of ,  18...,  the  same  was  duly 

presented  to  the  said  C.  D.  for  acceptance,  but  was  not  ac- 
cepted. 

III.  That  due  notice  thereof  was  given  to  the  defendant. 
rV.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judqmekt.] 

§  1026.    Allegation  Setting  Out  Copy  of  Bill. 

Form  No.  264, 

That  on  the day  of ,  18...,  at the 


436  FORMS  OP  COMPLAIN  IS.  §1027. 

defendnnts  made  and  delivered  to  the  plaintiff  their  bill  of  ex- 
chaiiire,  of  which  the  following  is  a  copy  [copy  of  bill]. 

§  1027.  Allegation  of  Demand  and  Notice  Excused 
by  V7aiver. 

Foi-m  No.  S65. 

That  the  defendant  at  the  time  said  bill  was  transferred  by 

him,  waived  as  well  the  presentation  of  the  same  to  siiid 

for  payment,  as  notice  of  the  non-payment  thereof. 

§  1028.  Allegation  of  Excuse  for  Non-presentment  — 
Bill  Countermanded. 

Form  No.  S66, 

That  on  or  about  the day  of.. ,  18...,  said 

bill  not  then  having  been  presented  for  acceptance  [or  for  pay- 
ment], the  defendant  countermanded  tlie  same  by  instructions 
to  the  said  [drawee]  not  to  accept  or  pay  [or,  if  payable  at  sight? 
not  to  pay]  the  same :  wherefore  it  was  not  presented. 

§  1029.  Allegation  of  Excuse  for  Non-presentment — 
Drawee  not  Found. 

Form  No.  i67. 

That  on  the,  etc.,  due  search  and  inquiry  was  made  for  said 

at  [state  the   place   of    address],   that  the   same 

might  be  presented  for  acceptance,  but  he  could  not  be  found, 
and  the  same  was  not  accepted. 

§  1030.  Averment  of  Protest. — That  said  bill  was  duly 
protested  at  maturity,  is  sufficient  to  admit  evidence  of  demand, 
neglect  to  pay,  and  notice  of  non-payment.^  The  holder  of  a 
bill,  upon  protest  for  non-acceptance,  has  an  immediate  cause  of 
action  against  the  drawer,  and  averments  of  demand  of  payment 
and  protest  might  be  rejected  if  the  declaration  counted  properly 
for  non-acceptance.' 

§  1031.  Necessary  Averments. — In  a  complaint  against 
the  drawer  of  a  bank  check,  or  of  a  bill  of  exchange  properly  so 
called,  it  is  necessary  to  aver  either  demand,  and  notice  to  the 
drawer  of  non-payment,  or  such  facts  as  excuse  demand,  and 
notice,  c.  g.,  want  of  funds  atbank.' 

§  1032.  The  Same  — Form  of  Allegation  Where  Bill 
was  payable  at  a  Specific  Date. 

Form  No.  868. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at , 

the  defendant  made  and  delivered  to  the  plaintiff  his  bill  of 

^  Woodbury  v.  Sackrlder,  2  Abb.  •  Mason  v.  Franklin,  8  Johns.  202. 
Pr.  406.  »  Sliultz  V.  Dupuy,  3  Abb.  Pr.  252. 


§   1034.  BILLS  OP  EXCHANGE.  437 

exchange,  directed  to  E.  F. ,  and  required  said  E.  F.  to  pay  to 

the  plaintiff dollars  on  the  day  of  , 

18...  [or  at  sight,  or days  after  date  thereof,  or  after 

sight  thereof] ,  for  value  received. 

II.  That  the  same  was  presented  to  E.  F.  for  payment,  but 
was  not  paid. 

III.  [If  a  foreign  bill.]  That  the  same  was  duly  protested 
for  non-payment. 

IV.  That  notice  thereof  was  given  to  the  defendant. 

V.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof, 

[Dkmand  of  Judomknt.] 

§  1033.  By  Partners  Payees  against  Partners  Ac- 
ceptors. 

Form  No.  869. 

[TlTLB.] 

A  B.  and  C.  D.,  the  plaintiffs  in  the  above-entitled  action, 
complain  of  E.  F.  and  G.  H.,  the  defendants,  and  allege: 

I.  That  at  the  times  hereinafter  mentioned,  the  said  plaintiffs 

were  partners,  doing  business  at ,  under  the  firm  name 

of  "  A.  B.  &  Co.,"  and    the    said    defendants   were   partners, 

doing  business  at ,  under  the  firm  name  of   "E.  F.  & 

Co." 

II.  That  on  the day  of  ,  18...,  at   , 

L.  M.  and  N.  O.,  partners,  doing  business  under  the  firm  name 
of  *'L.  M.  &  Co.,"  under  their  said  firm  name  made  their  cer- 
tain bill  of  exchange  in  writing,  payable  in  gold  coin  of  the 
United  States,  directed  to  the  defendants,  under  their  said  firm 
name  of  "E.  F.  &  Co.,"  bearing  date  on  that  day,  iu  the  words 
and  figures  following,  to  wit  [copy  of  bill] . 

III.  That  on  the day  of  ,  18...,  at...  , 

the  said  defendants,  under  their  said  firm  name  of  "E.  F.  & 
Co.,"  upon  sight  thereof,  accepted  said  bill  of  exchange. 

IV.  That  they  have  not  paid  the  same,  nor  any  part  thereof. 

[Dkmand  of  Jddgmknt.] 

§  1034.  Acceptance. — It  is  not  necessary  to  copy  the  ac- 
ceptance, nor  even  to  aver  that  it  was  in  writing.  It  is  enough 
to  aver  its  acceptance.^     Where  a  draft  is  accepted  conditionally 

»Horn<«r   v.  Wood,  15   Bxrb.  371;  609;  Le  Row.  Shaw,  Td.  628;  Merwin 

Baiikot  Lowville  V.  Edwnrds  1 1  H"W.  v.  Hnmilion,  6    Id.  248;    as    the  ac- 

Pr.  21H:   Fowler  v.  N.  Y.  Indem.  Ins.  ceptauce  of  a  bill  of  eichanpe  must 

Co.,  28  B;Arb     150;  Gibbs  v.   NmsIi,  4  b^  in  writing:  Civil  Code  Cal..  sees. 

Id.   449;    WHshburn    v.   Franklin.  28  3198,   8194;    Wheatley  v.  Strobe,  12 

Id.  27;  7  AM.  Pr.    8;  and  see  dicta.  Cal.  92. 
contra,  Tliurinan  v.  Stevens,  2  Duer, 


4'38  FORMS  OP  COMPLAINTS.  §   1035. 

to  be  paid  upon  the  happening  of  a  continorency,  the  question 
whether  it  has  happene«1  is  a  question  of  fact.^ 

§  1035.  Copy  of  Bill.- -The  holder  must  sue  on  that  one  of 
the  set  which  was  dishonored.^  Where  a  second  of  exchange 
was  dishonored,  and  the  first  was  subsequently  paid  previous  to 
suit  brought,  the  drawer  was  released  from  damages  for  the 
dishonor. 3 

§  1036.  Drafts  on  Appropriation. — A  draft  payable  in 
terms  out  of  an  "  appropriation, "  for  work  done  by  the  acceptor, 
becomes  due  on  payment  for  the  work  by  government.^ 

§  1037.  Gold  Cjin. — Under  the  statute  of  California,  if  the 
written  instrument  provided  for  payment  in  gold  coin,  the  com- 
plaint and  demand  for  judgment  should  be  for  gold  coin,  and 
judgment  will  thereupon  be  entered  up  accordingly. 

§  1038.  Non-acceptance,  Effact  of. — The  want  of  accept- 
ance affects  the  right  of  the  payee  only  as  to  his  mode  of  en- 
forcing payment. 5 

§  1039.  Notice. — ^Notice  may  be  given  to  the  indorser  or 
others  entitled  to  notice  immediately  after  presentment  to  the 
maker  or  acceptor,  and  the  refusal  of  the  same  to  pay.'  Any 
notice  is  sufficient,  if  it  informs  the  party  of  the  fact.''' 

§  1040.  Part  Payment. — When  the  drawee  pays  a  part  of 
the  draf%  and  receipts  on  the  back  of  the  order  the  amount 
paid,  and  it  is  signed  by  the  payee,  it  is  not  an  acceptance. ^  It 
is  evidence  that  the  drawee  owed  that  amount  and  paid  it.* 
The  acceptance  of  a  note  of  a  third  party  by  the  creditor  isr 
accompanied  with  the  condition  that  the  note  shall  be  paid  at 
maturity.  ^"^ 

§  1041.  Presentment. — In  an  action  against  the  maker  of 
a  note  or  the  acceptor  of  a  bill  of  exchange,  in  which  the  place 
of  payment  is  fixed,  it  is  not  necessary  to  aver  presentment  at  that 
place  and  refusal  to  pay.^* 

§  1042.    Payee  again'st  Acceptor— Short  Form. 

Form  Ifo.  270. 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18..,  the  defendant 

>  Nh^Io  v.  Homer,  8  C«l.  3.53.  spb    Minturn     v.     Fisher,     7      Cal. 

«  Uowiu-8  V.  Church,   13  I'et.  205;  67i. 

Wells  V.   Whitehead,  15   Wend.  527.  *  Bassett  v.  Haines,  9  Cal.  260. 

*  Pace,  Bacon  &  Co.  v.  Warner,  4  •  Id. 

Cal.  «95.  "  Griffith  v.  Grogan,  12  Cal.  817. 

*  Nnirle  V.  Homer,  8  Cal.  353.  "  .Moiiigomery  v.  Tiitt,  11  Cal.  307. 
»  Wheatley  v.  Strobe,  12  Cal.  92.  Case  in  which  the  evideiife  shows  suf- 

*  .M<  F'Hrland  v.  Fioo.  8  Cal.6.!6.  fitient  diliirence  in  presenting  (iint"i  for 
'McFarland  v.  Fico,  8   Cal.  626;  payment:  Brown  v.Oimsted, 60 ld.162. 


§  1047.  BILLS  OF  EXCHANGE.  439 

accepted  a  bill  of  exchange  made  [or  purporting  to   have  been 

made]    by  one  C.  D.,  on   the    day  of  ,  18..,,    at 

,    requiring    the    defendant    to    pay    to  the    plaintiff 

dollars,  after  sight  thereof.     A  copy  of  said 

bill  of  exchange  is  hereto  attaclied,  marked  "A,"  and  made  part 
of  this  complaint. 

II.  That  he  has  not  paid  the  same. 

[Dkmand  op  Judgmbwt.'] 

§  1043.    Allegation  Setting  Out  Copy  of  Bill. 

Form   No.  271. 

That  on  the  day  of  ....« ,    18..,  at    ,   the 

defendant  A.  B.  accepted  and   delivered  to  the  plaintiff  a  bill 
of  exchange,  of  which  the  following  is  a  copy. 
[Copy  bill  and  acceptance.]^ 

§  1044.  Corporation. — Wliere  defendant  is  a  corporation, 
and  the  bill  is  accepted  by  the  president  thereof  as  such,  an 
averment  that  he  was  president,  and  as  such  authorized  to 
accept,  is  not  necessary. ^ 

§  1045.  Costs  of  Protest. — A  claim  for  statutory  damages 
and  costs  of  protest  need  not  be  set  forth  in  the  petition  as  a 
separate  and  distinct  cause  of  action,  disconnected  from  the 
claim  on  the  bill.^ 

§  1046.    The  Same— Pleading  the  Legal  Effect. 

Fonn  No.  272. 

[TXTLE.] 

The  plain' iff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at ,  one 

A.  B.,  by  his   bill  of  exchange  in  writing,   dated  on  that  day, 
required  the  defendants    to   pay  to  the    order  of   the  plaintiff 

dollars,  days  after  said  date  [or  otherwise],  for 

value  received. 

II.  That  on  the    day   of  ,  18...,  at   , 

the  defendant  upon   sight  thereof,  accepted  said  bill,  of  which, 
and  the  acceptance   thereof,  the  following  is  a   copy  [copy  the. 
bill]. 

III.  That  he  has  not  paid  the  same,  or  any  part  thereof. 

[Demand  of  Judgmknt.] 

§  1047.  Consideration  on  Acceptance. — A  written- 
agreement  to  accept  amounts  to  an  acceptance,  and  no  cousidr 
eralion  need  be  shown.* 

*  Andrews  v.  Astor  Bank,  2  Duer,  '  Summit  County  Bank  v.  Smith,  1 

62'»:  Lew  v.  Lev,  6  Abb.  Pr.  89.  H:mdv,  675. 

»  Piirtridsje  v.B  idsijer,  25  Barb.  14fi;  ♦  OiitHrio  B'k  V.    Worthingtoo,  12 

Andrews  v.  Astor  Bunk,  2  Duer,  629;  Wend.  6U3. 
Price  V.  McCluve.  6  Id.  544. 


440  FORMS  OF  COMPLAINTS.  §  1048. 

S  1048.  Party  in  Interest. — ^In  an  action  on  a  draft,  brouglit 
by  the  Camden  Bank  against  the  drawer,  after  showing  that  the 
draft  was  made  paj'^able  "to  the  order  of  W.  B.  Storm,  cashier," 
an  averment  that  the  defendant  "  delivered  the  said  draft  to  W. 
B.  Storm,  fashierof  said  Camden  Bank,  for  the  said  bank,"  and 
that  "  the  said  draft  is  now  held  and  owned  by  the  said  plaintiffs, 
and  still  remains  due  to  them  from  the  defendants,"  sufficiently 
shows  that  the  bank,  and  not  the  cashier,  is  the  real  party  in 
interest.^ 

S  1049.  Presentment. — Against  the  acceptor,  it  is  not  nec- 
essary to  aver  or  prove  presentment  at  the  place  where  the  bill 
vrasmade  payable, ^ 

§  1050.  Promise  to  Accept.-^In  an  action  brought  upon  a 
promise  made  by  the  defendant  to  accept  a  draft  which  another 
might  draw  on  him,  it  is  not  necessary  to  aver  that  the  promise 
was  in  writing.^ 

§  1051.  The  Same — Acceptance  Varying  as  to  Time 
from  the  Bill. 

Form  No.  S73. 

[TlTLB.] 

I.  [Allege  making  of  bill  as  in  preceding  form.] 

II.  That  on  the day  of   ,  18  ...,  at  , 

the  iiefendant  [or  the  defendants  under  their  firm  name],  upon 

sight   thereof,  accepted  the  same,  payable  at days    [or 

otherwise]  after  the  date  of  said  bill  [or  after  said  day  of  accept- 
ance]. A  copy  of  which  said  bill,  and  the  acceptance  thereof,  is 
hereto  attached  and  made  part  of  this  complaint. 

III.  That  he  has  [they  have]  not  paid  the  same,  nor  any  part 
thereof. 

[Dkmakd  ot  Judomknt.] 
§  1052.    Were  Drawer  is  also  Acceptor,  on  Bill  Drawn 
on  Himself. 

Form  No.  S74. 
[Titlb] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of   ,  18  ...,  at , 

the  defendant  made  and  accepted,  and  delivered  to  the   plaintiff, 
his  bill  of  exchange  in  writing,  of  which  the  following  is  a  copy 
[copy  of  the  bill  and  acceptance]. 
n.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[DjfiMAND  OF  JUDQMICNT.] 

*  Camrlen  Bank  v.  Rofls;er8, 4  How  Pr.  68. 

•  Wolcolt  V.  Vhii  Santvoord,  17  Johns.  248;  Caldwell  v.  Cassidy,  8  Cow. 
271;  Hiixton  V.  Bishop,  3  Wend.   \:\. 

»  Wnkpfield  V.  Greeuhood,  29  Cal.  597;  Bank  of  LowvilU  v.  Edwards,  11 
Boa.  P..  216. 


§   1055.  BILLS  OF  EXCHANGE.  441 

§  1053.    By  Assignee  of  a  Bill  Payable  Out  of  a  Par- 
ticular Fund. 

Form  No.  S75. 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That    on    the day    of    ,  18...,  at    , 

one  A.  B.  made  his  bill  of  exchange  or  order  in  writing,  dated 
on  that  day,  and  directed  it  to  the  defen  lant,  and  thereby 
required  the  defendant  to  pay  to  one  0.  D.,  out  of  the  pro- 
ceeds of  [state  fund  as  in  the  bill]  dollars 

days  after  the  date  thereof,  and  delivered  it  to  said  C.  D. 

II.  That    on    the  day   of  18...,    at , 

upon  sight  thereof,  the  defendant  accepted  the  same,  payable, 
when  in  funds,  from  the  proceeds  of  [etc.,  as  in  acceptance]. 

III.  That    on   the  day  of ,    18...,  at , 

said  C.  D,  assigned  said  bill  to  this  plaintiff.  Ttie  following  is 
a  copy  of  said  bill  of  exchanze,  and  of  the  said  acceptance  and 
assignment  thereof  [copy  same]. 

IV.  That  on  the day  of ,  18...,  the  defendant 

had  funds  of  the  said  A.  B.,  proceeds  of,  etc. 

V.  That   on    the    day  of ,  18  ...,  at  , 

the  plaintiff  demanded  payment  thereof  from  the  defendant. 

VI.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Dkmand  of  Judgment.] 
§  lOot.     AUegatioa  tiiat  Dafendant  Acoepted. — An  ac- 
ceptance generally  wiLhoufc   words  of  restriction   to   a  fund    or 
contingency,    will    in    some    cases    bind    the     acceptor    abso- 
lutely.i 

§  1055.    Payee  against  Drawer  and  Acceptor — On  a 
Bill  Accepted  by  the  Drawee. 

Form  No.  276, 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day     of   ,  18  ...,  at ,  the 

defendant  A.    B.,  by  his   bill   of   exchange,  required  one  C.  D. 

to   pay  to   the   plaintiff dollars, days   after   the 

date  thereof  [or  otherwise]. 

II.  That   on  the day  of   ,  18  ...,    the   defendant 

C.  D.,  upon  sight  thereof,  accepted  said  bill.  The  following 
is  a  copy  of  said  bill  and  of  said  acceptance  [insert  copy]. 

III.  That  at  maturity  the   same  was  presented  to  the  defend- 
ant C.  D.  for  payment,  but  was  not  paid. 

1  Atkinson  v.  Manks,  1  C^w.  691;  Maber  V.  Massias,  2  W.  BlacksL  1072; 
Lent  V.  Hudgman,  15  Barb.  274. 


442  FORMS  OF  COMPLAINTS.  §    1056. 

rV.  That  notice  thereof  was  given  to  the  defendant  A.  B. 
V.  That  no  part  of  the  same  has  been  paVd. 
[Dkmand  of  Judgment.] 

§  1056.    By  Payee,  on  a  Bill  Accepted  for  Honor. 

Form  No.  277. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of   ,  18..,  the  defendant  A. 

B.,  by  his  bill  of  exchange,  required  one  C.  D.  to  pay  to  the 

plaintiff doUai's   days  after   the   date  thereof 

[or  otherwise].     The  following   is  a  copy  of  the  said  bill  of  ex- 
change, and  of  all  acceptances  thereon  [insert  copy  of  same], 

II.  That   on  the   day   of    ,   18..,  the  same  was 

presented  to   the   said   C.  D.  for   acceptance,  but  was  not  ac- 
cepted. 

III.  That  notice  thereof  was  given  to  the  defendant  A.  B. 

IV.  That  on  the  day  of    ,    18...,  at   , 

the  defendant  E.  F.   [acceptor  for  honor],  upon  sight  thereof, 
accepted  said  bill  for  the  honor  of  said  A.  B. 

V.  That  at  mtiturity  the  same  was  presented  for  payment  to 
said  C.  D.,  but  was  not  paid. 

VI.  That  notice  thereof  was  given  to  the  defendant,  A.  B. 

VII.  That  thereupon  the  same  was  duly  presented  to  the 
defendant,  E,  F.  [acceptor  for  honor],  for  payment,  but  was  not 
paid. 

VIII.  That  notice  thereof  was  given  to  the  defendant,  A.  B. 

IX.  That  no  part  of  the  same  has  been  paid. 

[DjCMAND  or  JUDOMKNT.] 

§  1057.  Accommodation  Acceptor. — ^The  accomraodntion 
acceptor  who  pays  without  funds,  can  recover  from  the  diawer, 
not  upon  the  bill,  but  for  money  paid.^ 

§  1058.  Presentment  at  Maturity. — In  a  complaint  against 
acceptor  for  honor,  the  plaintiff  must  show  that  the  bill  was 
presented  at  maturity  to  the  drawee,  and  that  the  drawer  had 
notice  of  non-payment.*  It  is  not  necessary  to  aver  that  the 
demand  was  made  of  the  maker  at  the  place  specified  in  the 
note,  in  a  complaint  under  tlie  code.  Such  a  demand  was,  by 
authority  settled  to  be  a  condii'm  precedent  under  the  late 
practice,  and  the  averment  essentiril  to  a  recovery.  But  section 
162  of  the  code  (New  York)  has>  dispensed  with  the  necessity  of 

»  Griffith  V.  Rppd.  21  Wpnrl.  502;  C'»««.  4«<^;  Schofield  v.  BayarL  3 
Si.v.liim  V.  WcstiMll.  4  Hill   -jri.  Wend.  4bS. 

'  Wiliiaijia  V.  Geniiuiuu,  7  iiani.  «& 


§   1061.  BILLS  OF  EXCHANGE.  443 

pleading  the  facts  which  constitute  the  performance  of  a  condi- 
tion precedent.' 

§  1U59.  By  Indorsee — First  Indorsee  against  Acceptor. 

Form  A'o.  ^78, 
[TiTLK  ] 

Tlie  plaintiff  complains,  and  alleges: 

I.  That  on   the  day   of  ,    18..,    the   defendant 

accepted  a  bill  of  exchange,  made  by  one  A.  B.,  on  the 

day   of   ,    18..,  at ,  requiring  the  defendant  to 

pay  to  the  order  of  one  C.  D., dollars after  sight 

thereof,  of  which  the  following  is  a  copy  [insert  copy]. 

II.  That  the  said  C.  D.  indDrscd  the  same  to  the  plaintiff. 

III.  That  defendant  has  not  paid  the  same. 

[Dkmand  of  Judgmkxt.] 

§  1060.    First  Indorsee  Against  First  Indorser. 

Form  No.  279, 
[Title] 
The  plaintiff  complains,  and  alleges : 

I.  That  the  defendant  indorsed  to  the  plaintiff  a  l>ill  of  ex- 
change, made  by  one   A.  B.,  on   the    day  of  , 

18...,  at  ,  requiring  one  C.  D.  to  pay  to  the  order  of 

the  defendant dollars,   [days]   after  siijht  [or 

after  date,  or  at  sight]  thereof,  and  accepted  by  the  said  C.  D. 
on  the  day  of  ,  18...,  at Tlie  fol- 
lowing is  a  copy  of  said  bill  of  exchange,  and  of  said  indorsement 
and  acceptance  [insert  copy]. 

II.  That  on  the day  of  ..,  18...,  at  , 

the  same  was  presented  to  the  said ,  for  payment,  but  it 

was  not  paid. 

III.  That  due  notice  thereof  was  given  to  the  defendant. 

IV.  That  he  has  not  paid  tlie  same,  nor  any  part  thereof. 

[Demand  of  Juuqmknt.] 

§  lOGl.  First  Indorsee  against  Drawer  and  Indorser — 
For  Non-acceptance. 

Form  No.  SSO. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of  18...,  at , 

the  defendant,  by  his  bill  of  exchange,  required  one  C.  D.  to  pay 

to  the  order  of  one  E.  F dollars days  after  the 

date  thereof  [or  otherwise]. 

»  Gay  V.  Paine,  5  How.  Pr.  107;  M«chado,  6  Diier.  515.  The  later 
Wovidburv  V.  Sarkrider,  2  Abb.  Pr.  ca?e  of  Fern«>r  v.  WilliMms,  87  Barb. 
40J;  to  tlie   conlrary,     Graham      v.    9,  loUowa  aud  approves  Gay  v.  Payne. 


444  FORMS  OF  COMPLAINTS.  §.  1086. 

II.  That  the  said  A.  B.  then  and  there  delivered  the  same  to 
the  defendant  E.  F.,  who  then  and  there  indorsed  it  to  the  de- 
fendant G.  H. 

III.  That  on  the day  of ,  18...,  at , 

the  defendant  G.  H.  indorsed  the  same  to  the  plaintiff  for  value. 
The  following  is  a  copy  of  said  1)111  of  exchange  and  of  the  said 
indorsements  thereon  [copy  bill  and  indorsements]. 

IV.  That  tlie  same  was  presented  to  C.  D.  for  acceptance, 
but  was  not  accepted  [if  a  foreign  bill,  add,  and  was  thereupon 
duly  protested  for  non-acceptance],  of  all  which  due  notice  was 
given  to  the  defendants. 

V.  That  no  part  of  the  same  has  been  paid. 

[Djcmand  op  Juixgmknt.] 

§  1062.  Delivery. — Where  the  plaintiff,  as  indorsee  of  a 
bill  of  exchange,  sued  the  acceptor,  declaring  under  tlie  statute 
of  New  York,  on  the  money  counts,  and  appending  a  copy  of  the 
bill,  with  notice  that  it  was  his  cause  of  action ;  but  in  the  copy 
his  indorsement  was  omitted,  it  was  held  that  delivery  was  suffi- 
ciently averred  by  implication,  that  indorsement  was  not  neces- 
sary to  pass  title,  and  that  the  bill  was  therefore  admissible 
upon  the  trial  of  the  cause,' 

§  1063.  First  ludorsee  against  All  Prior  Paities— For 
Non-payment. 

Form  No.  SSI. 
[Tiri.B.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of 18...,  at ,  the 

defendant  A.  B.,  by   his   bill  of   exchange,  requested  C.  D.  to 

pay  to   the  order   of  the  defendant  E.    F.,  dollars, 

.....days  after  the  date  thereof. 

II.  That  the  said  A.  B.  then  and  there  delivered  the  same  to 
the  said  E.  F.,  who  thereupon  indorsed  it  to  the  defendant  G.  H. 

III.  That  on  the  day  of  ,  18....,  at , 

the  said  G.  H.  indorsed  the  same  to  the  plaintiff  for  value. 

IV.  That  on  the   day  of ,18....,    at     , 

the  defendant  C.  D.,  upon  sight  thereof,  accepted  said  bill. 

V.  That  at  maturity  the  same  was  presented  to  the  defendant 
C.  D.  for  payment,  but  was  not  p:iid  [if  a  foreign  bill,  add,  and 
was  thereupon  duly  protested  for  non-paj^ment] ,  of  all  which 
due  notice  was  given  to  the  defendants  A.  B.,  E.  F.,  and  G.  H. 

VI.  That  no  part  of  the  same  has  been  paid. 

[DkMAND  OF  JUDO.\IKNT.] 

*Por  anthority  foralongftrbutsimilHrform,  seePhelps  v.  Fargusoa   9  Abb 
•Pr.'iOii;  Greenburyv.  Wilkins,  Id.,  note. 
«  Purely  V.  Vermilya,  4  Seld.  340. 


§   10  .7.  BILLS  OP  EXCHANGE.  4l5 

§1064.     Subsequent  Indorsee   against  Acceptor. — 

Form  JNo,  282. 
[TiTT.K  ] 

I.  [Allege  acceptance  of  bill,  as  in  form  No.  281.3 

II.  That  by  the  indorsement  of   said  ,  ihe  same  was 

transferred  to  ihe  plaintiff  for  value. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Demand  of  Judgmknt.] 

§  1065.     S'lbsequent  Indorsee  against  First  Indorser — 
Indorsement  Special. 

Form  No.  2SS, 

[TlTI.1.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the   defendant  indorsed   to  one  C.  D.   a  bill  of  ex- 
change, made  by  one   A.   B.,  on  the   day  of   , 

18...,  at ,  requiring  E.  F.  to  pay  to  the  order  of  the  de- 
fendant    dollars, days  after  sight  thereof    [or 

otherwise],  and  accepted  by  the  said  E.  F.  on  the  day  of 

,  18...,  at 

II.  That  the  same  was  by  the  indorsement  of  the  said  C.  D., 
transferred  to  the  plaintiff. 

III.  That   on  the  day  of  ,   18...,  at , 

the  same  was  presented  to  the  said  E.  F.  for  payment,  but  it 
was  not  paid. 

IV.  That  notice  thereof  was  given  to  the  defendant. 

V.  That  he  has  not  paid  the  same  nor  any  part  thereof. 

[Dkmand  of  Judgmknt.] 

§  1066.     Subsequent  Indorsee  against  Intermediate  In- 
dorser. 

Form  No.  884. 
[Title.] 

The  plaintiff  complains,  and  alleges : 

I.  That  a  bill  of  exchange   made  by  one  A.  B.  on  the  

day  of  ,  18..,    at  ,  requiring    one  C.  D.  to  pay 

to  the  order  of  one  E.  F  dollars,   days  after 

sight  thereof  [or  otherwise],  [accepted  by  said  C.  D.],  and  in- 
dorsed by  the  said  E.  F.  to  the  defendant,  was  by  the  indorse- 
ment of  the  defendant  [and  others],  transferred  to  the  plaintiflf. 

[Allege  presentment,    notice,   and    non-payment    as  in  form 

No.  283.] 

[Dkmand  of  JmoGMBNT.] 

§  1067.    Subsequent  Indorsee  against  Last  Indorser. 

Form    No.  285. 

[TiTLK.] 

The  plaintiff  complains,  and  alleges; '^''"     *--  '  ^ 


446  FORMS  OF  COMPLAINTS.  §   1068. 

I.  That  tlie  defendant  indorsed  to  him  a  bill  of  exchange,  made 

[or  purporting  to  have  been  made]  by  one  A.  B.,  on  the 

day  of  ,  18...,  at ,  requiring  one  C.  D.  to  pay 

to  the  orderof  oneE.  F dollars,  days  after 

sight  thereof  [or  otherwise],   [accepted  by  the  said  C.  D.],  and 
indorsed  by  the  said  E.  F.  to  the  defendant. 

II.  That  on  the day  of ,  18...,  at , 

the  same  was  presented  to  the  said  C.  D.  for  payment,  but  it  was 
not  paid. 

III.  That  due  notice  thereof  wasgirento  t\^  dofondant, 

IV.  That  he  has  not  paid  the  same  nor  any  part  tliereof. 

[Demand  of  Judgment] 

§  1068.  Subsequent  Indorsee  Against  all  Prior  Par- 
ties—Short Form. 

Form  No.  S86. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at , 

the  defendant  A.  B.,  by  his  bill  of  exchange,  required  the  defend- 
ant C.  D.  to  pay  to  the  orderof  the  defendant  E.  F., 

dollars, days  after  siglit  thereof. 

II.  That  on  the day  of 18...,  the  said  C. 

D.  accepted  the  same. 

III.  That  the  said  E.  F.  indorsed  the  same  to  the  plaintiff. 

IV.  Tliat  on  the day  of 18...,  the  same 

was  presented  to  the  said  C.  D.  for  payment,  but  was  not  paid. 

V.  Tliat  due  notice  thereof  was  given  to  the  other  defendants, 
and  each  of  them. 

VI.  That  they  have  not,  nor  has  either  of   them,   paid   the 

same. 

[Demand  of  JmaoMKNT.] 

§  1069.     The  Same  by  a  Bank  in  its  Corporate  Name. 

Form  No.  gS7. 
[Statk  and  County.]  [Couht.] 

Thb  Bank  of 1 

against  > 

A.  B.,  C.  D.,  and  E.  P.         ) 

The  plaintiff,  a  corporation,  duly  organized  and  incorporated 

under  the  laws  of  the  state  of complains,  and  alleges 

[allegations  same  as  in  last  form]. 

[Demand  of  Judgmbnt.] 

§  1070.     Checks — Payee  Against  Drawer. 

Form  No.  2S8. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  times  hereinafter  mentioned,  the  said  defendr 


§   1074.  BILLS  OF  EXCHANGE.  447 

anis  were  partners,  doing  business  as  merchauis  at , 

under  the  firm  name  of  C.  D.  &  Co. 

II.  That  on  the day  of ,  18...,  at ,  the 

defendants,  under  their  said  firm  name  of  C.  D.  &  Co.,  made 
their  check  in  writing,  dated  on  that  day,  payable  to  the  order 
of  the  plaintiff,  which  said  check  is  in  the  words  and  figures 
following,  to  wit  [copy  of  check]. 

III.  That  the  said  check  was  presented  on  the day 

of ,  18...,  to  the  said ,  for  payment,  but  was 

not  paid. 

IV.  That  due  notice  thereof  was  given  to  the  defendants. 

V.  That  they  have  not  paid  the  same,  nor  any  part  thereof. 

[Dkmand  oy  Judgment.] 

§  1071.  Checks — Taking  after  Dishonor— Considera- 
tion.— Checks  are  on  the  same  footing  as  bills  of  exchange, 
excepting  the  difference  which  may  arise  from  the  custom  of 
merchants. 1  The  legal  presumption  is  that  a  check  is  drawn 
for  money  due  from  the  diawer.^  A  party  taking  a  check  after 
presentment  and  dishonor,  takes  it  subject  to  all  the  equities  to 
which  it  was  subject  in  the  hands  of  the  original  holder.^  When 
the  holder  of  a  note  accepts  a  draft  or  check  in  payment,  he  is 
not  bound  to  give  up  the  note  before  payment  of  the  draft  or 
check.^  The  surrender  of  the  note  is  prima  facie  evidence  of 
its  payment.^  The  presumption  is  that  the  check  was  given  on 
a  valid  consideration,  but  this  presumption  being  rebutted, 
plaintiff  must  prove  that  he  received  it  in  good  faith,  and 
without  notice  of  the  illegality  of  the  consideration.^  A  check 
given  for  a  gaming  debt  is  void  in  the  hands  of  all  persons,  ex- 
cept a  bona  fide  holder  without  notice."^ 

§   1072.     Qrace. — In  California  da3's  of  grace  are  not  allowed. ^ 

§  1073.  Lost  Paper.— Where  a  check  has  been  lost  and 
paid  by  the  banker  upon  a  forged  indorsement,  in  a  suit  for  the 
same,  where  the  banker  refused  to  deliver  the  check  to  the 
owner,  in  the  absence  of  rebutting  testimony,  the  measure  of 
damages  is  the  full  amount  for  which  it  was  drawn, ^ 

§  1074.  Non-negotiable  Draft. — A  non-negotiable  draft, 
rendered  so  by  the  absence  of  any  fixed  amount,  may  be  ren- 
dered negotiable  by  an  iudorsement,  *'  balance  due dol- 

»  Minthurn  v.  F'sher,  4  Cal.  85.  »  Smith  v.  Harper,  6  Cal.  Z^O. 

«  H.'iidl«y  V.  Reed,  2  Cal.  322.  •  Fuller  v.  Hutcbings,  10  Cal.  628. 

•Fuller    V.  Huuhings,  10   Cal.  523;         »Id. 
but  see  Chambers  v.  Satterlee,  40  Cal.        •  Civil  Code,  spp.  3181, 
611.  'Survey  v.  Wella,  Fargo  &  Co.,  5 

*  Smith  V.  Harper,  6  Cal.  330.  Cal.  124. 


448  FORMS  OF  COMPLAINTS.  §    1075. 

lars,"  and  signed  by  indorser,  who  is  estopped  thereby  from 
setting  up  against  it  any  antecedent  matter,  and  is  liable  for  the 
full  amount.^  No  right  of  action  can  accrue  upon  a  draft  till 
payment.^ 

§  1075.  Notice. — In  general,  presentment  and  notice  of  non- 
payment are  necessary  to  charge  the  drawer  of  a  check.'' 

§  1076.  Presentment. — As  against  the  drawer,  presentment 
at  any  time  before  suit  brought  is  sufficient,  unless  it  appear  that 
he  has  been  prejudiced  by  unreasonable  delay.'*  By  the  law  mer- 
chant, it  is  sufficient  if  a  check  drawn  upon  one  day  be  presented 
for  payment  in  the  usual  banking  hours  on  the  next  succeeding 
day.5  The  payee,  to  hold  the  drawer,  is  bound  to  use  reasonable 
diligence.  ^ 

§  1077.  Payment  Stopped. — Where  the  complaint  alleged 
demand,  refusal,  and  notice  to  defendants  of  non-payment,  and 
also  that  before  the  demand  the  defendant  had  stopped  its  pay- 
ment by  notice  to  the  officers  of  the  bank  not  to  pay  it,  and  the 
answer  denied  that  the  defendants  had  notice  of  the  non-payment, 
and  alleged  that  they  stopped  its  payment  because  it  was  obtained 
from  them  by  fraud  of  which,  as  well  as  of  its  pfiyment  having 
been  stopped,  the  plaintiffs  had  notice  before  they  took  the  check, 
it  was  held  tliat  the  allegation  in  the  complaint,  of  notice  to  the 
defendants  of  non-payment,  might  be  disregarded  as  surjilusage; 
and  the  plaintiffs  should  be  allowed  to  prove,  under  the  pleadings, 
the  fact  that  payment  had  been  stopped.  That  excused  the  want 
of  notice.''' 

§  1078.  To  Bearer. — A  check  payable  to  the  order  of  a  fic- 
titious person,  e.  g.,  of  a  firm  long  since  dissolved, ^  or  "to  the 
order  of  bills  payable,"  *  is  to  be  deemed  payable  to  bearer,  if 
negotiated  by  the  maker. 

§  1079.  When  Due. — When  no  time  of  payment  is  men. 
tioned,  the  check  or  note  is  payable  immediately,  and  complaint 
should  not  state  a  time  of  payment.^" 

§  1080.    Indorsee  or  Bearer  of  Check  against  Drawer. 

Form  No.  289, 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

*  Garwood  V.Simpson,  8  Cal.  101.  'Ritchie  v.  Bradslmw,  6  Cal.  228.' 

*  VVakeman  v.  Vatiderbilt,  3  Cal.380.         •  Kiichio  v.  Bradsbaw,  5  Cal.  228.* 
*Harkor    v.    Anderson,   21    Wend.  *  Purchase  v.  Maltison,  6  Diier   587. 

823;  Sliiilizv.  Dupuy,  8  Abb.  Pr.252;  •Stevens  v.  Strang,  2  Sandf.  138. 

but  ciimpiire   Cruger  v.  Armstrong,  3  '  Willets  v.  Phoeuix  Bank,  2  Diier, 

Johns.  Cus.  4;  Conroy  v.  Warren,  Id.  121. 

259.  ">  Herrick  v.  Bennett,  8  Johns.  874 : 

*  Little  v.  Plioenix  Bank,  2  Hi]!,  Pearsoll  v.  Frazer,  14  Barb.  664. 
425-;  Harbcck  v.  Craft,  4  Duer,   122.  Thompson  v.  Ketcham,  8  Johns'.  I89! 


f   1085.  BILLS  OP  EXCHANGE.  449 

I.  That  on  the day  of  ,  18...,  at  , 

the  defendant  made   his  check   in   writing,   dated  on  that  day, 
and  directed  the  same  to   the  bank  of  A.    B.,  requiring  said 

bank  to  pay  to  one  C.  D.,  or  order  [or  bearer],  dollars 

for  value  received. 

II.  That  the  defendant  then  and  there  indorsed  the  same  to 
this  plaintiff. 

III.  That  on  the day  of    ,  18..,  at  , 

the  same  was  presented  to  said   bank  of  A.  B.  for  payment,  but 
was  not  paid. 

IV.  That  due  notice  thereof  was  given  to  the  defendant. 

V.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Dkmand   of  Judgment.] 

§  1081.  Allegation  of  Excuse  for  Failure  to  Give 
Notice. 

Form  No.  290. 

That  on  the day  of  ,  18...,  the  same  was  pre- 
sented to  said  [drawee]  for  payment,  but  the  defendant  had  no 
fuu'ls  wilh  said  drawee. 

§  1082.  Allegation  of  Excuse — Want  of  Funds. — 
Want  of  funds  in  the  drawee's  hands  excuses  the  omission  to  give 
notice  of  non-payment.^  But  where  it  is  intended  to  rely  upon 
want  of  funds  as  excusing  demand  or  notice,  that  fact  must  be 
averred.* 

§  1083.  Allegation  of  Excuse  from  Insolvency  of 
Drawee. 

Form  No.  291. 

That  on  the  day  of  ,  18...,  at ,  said 

[drawee]  was  insolvent  [or  had  stopped  payment]. 3 

§  1085.  Time. — ^The  time  should  be  stated  that  it  may 
appear  whether  it  was  such  as  to  excuse  the  holders  from  a  de- 
mand.* One  who  takes  a  check  which  by  its  date  appears  to 
have  been  outstanding  for  two  years  and  a  half,  and  which  has 
"  Mem."  written  on  its  face,  must  bear  the  loss  arising  from  his 
taking  it  without  inquir\\5 

§  1085.  Indorsee  or  Bearer,  against  Drawer  and  In- 
dorser. 

Form  No.  29S 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

1  As  to  whether  it  excuses  non-pre-  Franklin   v.  Vanderpool,  1  H<<1T,  78. 

senlment,   see  Crus:er  v.  Arm*tron£»,  '  As  against  drawer,  the    drawee's 

8    Johns.  Chs.  5;  Id.    259;  Fitch    v.  insolvency    is    sufficient  to  dispense 

Redding.  4   Sandf.  130;   Franklin  v.  with  presentment  and  notice:  Lovett 

Vanderpool,  1  Hall,  88.  v.  Cornwell,  6  Wend.  869. 

«  Shultz  V.  Dupuy,  3  Abb.  Pr.  252 ;  ♦  1  Chit  PI.  289. 

Garvey    v.   Fowler,    4    Sandt     6(j5f  '  SkiUmMn  v.  T-'-s.  3  V'->"m.  Q*?. 
EsTaK.  Vol.  1—29. 


450  FORMS  OF  COMPLAIKTS.  §    1086. 

I.  Thfit  on  the day  of ,  18...,  at ,  the 

-defendant,  A.  B.,  made  his  check,  and  directed  the  same  to  the 
bank  of  C.  D.,  and  thereby  required  said  C.  D.  to   pay  to  the 

defendant,  E.  F.,  or  order  [or  bearer],  dollars  for 

vaUie  received,  and  delivered  it  to  the  defendant,  E.  F. 

II.  That  thereupon  said  defendant,  E.  F.,  indorsed  the  same 
to  this  plaintiff  for  value. 

III.  That  said  check  was  duly  presented  for  payment,  but 
-was  not  paid. 

IV.  That  due  notice  thereof  was  given  to  the  defendants. 

V.  That  they  have  not  paid  the  same,  nor  any  part  thereof. 

[Dkmand  of  Judumknt.] 
;  1086.    Against  Bank,  Drawee  having  Certified. 

Form  No.  SS9S. 

[TiTLlt.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  a  corporation,  created  by  ani  under 
the  laws  of  this  state,  organized  pursuant  to  an  act  of  the  leg- 
islature entitled  *'An  act  to  autliorize  the  business  of  banking," 
passed ,  and  the  acts  amending  the  same. 

II.  That  on  the day  of  ,  18...,  at , 

one   A.  B.  made  his  check,  and   directed  it    to  the  defendants, 
and  thereby  required  them  to   pay  this   plaintiff,  or  order  [or 

bearer],  dollars,  for  value  received;  and  delivered  the 

same  to  this  plaintiff  [or,  if  nayable  to  third  party,  state  accord- 
ingly]. 

III.  That  on  the day  of  ,  18...,  at , 

the   defendant,  by  its   agent  duly  authorized  thereto,  in  writing, 
accepted  and  certified  the  same  to  be  good. 

IV.  That  thereafter  the  same  was  duly  presented  for  pay- 
ment, but  no  part  thereof  was  paid. 

[Djcmaxd  of  Jubgmukt.] 

§  1087.  Raised  Check  Certified. — A  bank,  by  certifying  a 
cheek  in  the  usual  form,  simply  affirms  the  genuineness  of  the 
signature  of  the  draAver,  and  that  it  has  funds  sufficient  to 
meet  it,  and  engages  that  they  will  not  be  withdrawn  to  the 
prejudice  of  the  holder  of  the  check,  but  does  not  warrant  the 
genuineness  of  the  body  of  the  check.^  "Where  a  raised  check 
had  been  certified  and  afterwards  paid,  the  bank  certifying  and 
paying  could  recover  back  as  for  money  paid  by  mistake.* 

§  1088.  Certified  Check. — The  certifying  of  a  check  as 
•'good  "  transfers  the  sum  drawn  for  to  the  holder,  and  imports 

1  Murine  Nfttional  Bank  v.  The  National  City  Bank,  59  N.  Y.  67. 
sid. ;  aud  Security  Bauk  v.  National  Bank,  67  N.  Y.  458. 


S   lOyO.  PROMISSORY  NOTES,  ETa  451 

a  promise  to  pny  to  him  on  demand.  But  the  drawee  can  not  set 
off  a  claim  on  the  hohler  against  the  amount  so  transferrfed,  and 
the  maktr  of  the  cheek  is  n<>t  discharged.^  Where  i  check  dated 
January  10,  1866,  was  certified  by  the  assistant  cashier  of  defend- 
ant's hank,  and  was  iii<Jorsed  to  W.,  December  1,  1865;  March 
7,  1866,  the  check  was  deposited  with  the  plaintiff,  who  credited 
W.  with  tlie  amount  on  their  books ;  and  the  drawer  of  the  check 
haH  not  funds  with  defendants  to  meet  it,  either  when  it  was  cer- 
tified, or  when  it  was  presented,  it  was  held,  that  W.,  as  he  took 
a  postdated  check,  had  notice  that  the  cashier  was  exceeding  his 
autliority  in  certifying  it,  and  that  plaintijffs  took  subject  to  th^ 
equities  against  W.* 


CHAPTER  m. 

ON  PROMISSORY  NOTES,  AND  CERTIFICATES  OP  DEPOSTT. 
§  1089.  Maker  of  Accommodation  Note,  having  Faidit. 

Form  No.  294. 

[TlTLB.] 

The  |)laintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at ,  the 

plaintiff  made  his  promissory  note,  of  which  the  following  is  a 
copy  [copy  of  note]. 

II.  That  the  plaintiff  never  received  any  consideration  therefor, 
but  that  it  was  an  accommodation  note,  made  and  given  to  the 
defendant,  at  his  request,  and  upon  his  promise  that  he  would 
pay  it  at  maturity. 

III.  That  as  the  plaintiff  is  informed  and  believes,  the  de- 
fendant thereafter  and  before  its  maturity  negotiated  it  for 
value. 

IV.  That  the  defendant  failed  to  pay  the  same  at  maturity, 
and  the  plaintiff  paid  it. 

V.  That  defendant  has  not  repaid  the  same,  nor  any  part 

thereof. 

[DltMA,WI)  OF  JtmonrBNT.] 

§  1090.  Accommoiatioi  Ma'xer  as  Plain'iiff. — An  ac- 
commodation maker  or  indorser  is  a  surety  and  may  sue  as  such 

1  Brown  v.   l>ckie,    43     PL    497;  of  bank  afBcers  to  accept  and  certify, 

BickforJ  v.  First    National  B»nk   of  see  Willeta  v.  Phoenix  Bank.  2  Duer, 

Chicaaro,  42  Id.  238;  Rounds  v.  Smith,  121 ;  Farmers'  Bank  v.  Butchprs'  and 

Id.  245.  Drovers'  Bank,  4  Id.   219;  Claflin  v. 

«  Clark  Nat    Bank  ▼.  Bank  of  Al-  Firmers'  and  Citizens'  Bnnk,  25  N.  Y. 

bion,  52  Barb.  592.    As  to  authority  293;  !S.  C,  24  How.  Pr.  L 


462  FORMS  OF  COMPLAINTS.  §   1091. 

to  recover  payments  raarle  by  him.*  If  t!\e  accomrandation 
maker  v^as  sued,  the  allegation  may  state  that  "the  plaiiililf  was 
thereupon  compelled,  by  suit  brought  against  him  by  A.  B.,  the 
holder,  in  the conrt."^ 

§  1091.  Coupons. — Interest  coupons  to  railroad  bonds,  pay- 
able t)  bearer  at  a  spic^ilied  time  and  |)laee,  are  negotiable 
promises  for  the  payment  of  money,  and  are  subject  to  the  same 
rules  as  other  negotiable  instruments.  They  are  transferable 
by  delivery,  although  detached  from  the  bonds,  and  a  purchaser 
in  good  faith,  before  maturity,  from  one  who  has  stolen  them, 
acquires  a  valid  title  ^ 

§  1092.  Contingsnt  Order. — ^^A  contingent  order  is  not 
negotiable.* 

§  1093.  Consid3rat'oti. — A  complaint  upon  a  promissory 
note  need  not  aver  that  it  was  given  for  a  consideration. ^  Sec- 
tion 3104  of  the  Civil  Code  of  California  is  as  follows:  "The 
signature  of  every  drawer,  acceptor,  and  indorser  of  a  negotiable 
instrument  is  presumed  to  have  been  made  for  a  valuable  con- 
sideration, before  the  maturity  of  the  instrument,  and  in  the 
ordinary  course  of  business." 

§  1094.  Date. — A  negotiable  instrument,  may  be  with  or 
without  date,  and  with  or  without  designation  of  the  time  or 
place  of  payment.^  Any  date  may  be  inserted  by  the  maker  of 
a  negotiable  instrument,  whether  past,  present  or  future,  and 
the  instrument  is  not  invalidated  by  his  death  or  incapacity  at 
the  time  of  the  nominal  date.' 

§  1095.  Filling  Blanks. — One  who  makes  himself  a  party 
to  an  instrument  intend  ed  to  be  negotiable,  but  which  is  left 
wholly  or  partly  in  blank,  for  the  purpose  of  filling  afterwards, 
is  liable  on  the  instrument  to  an  indorser  thereof  in  due  course, 
in  whatever  manner  and  at  whatever  time  it  may  be  filled,  so 
long  as  it  remains  negotiable  in  form.^ 

§  1096.  Joint  Maker  of  a  Note,  having  Paid  it,  against 
the  Other,  for  Contribution. 

Form  No.  295 

[TiTLT.l 

The  plaintiff  complains,  and  alleges : 

1  Baker  V.  Martin,   8    Barb.  634;  Holmes  v.  Weed,  24  Barb.  546,  which 

Neass  V.   Mercer,  15  Id.  8l8.     For  a  limits  it  to  costs  of  default, 

form  of  complaint  by  accommodation  '  Evertson  v.  Nat.  Bank,  66  N.  Y.  14. 

mnker,  see  Osgood  v.  Whittelsey,  10  *  Kennv  v.  Hinds,  44  How.  Pr.  7.   . 

Abh,  Pr.  134.  6  PinneV  v.  King,  21  Minn.  614. 

«  Packard  v.  Hill,  7  Cow.  442.    And  •  Cal.  Oivil  Code,  sec.  8091. 

njav  recover  the  costs  of  suit:   Baker  *  Cal.  Civil.  Code,  sec.  8094. 

v.   Martin,    8   Barb.  631.      But  siee  *  Cal.  Oivil  Code,  sec.  8125. 


§   1099.  PROMISSORY  NOTES,  ETC.  458 

I.  That  on  the  day  of  ,  18...,  at , 

this  plaintiff  and  the  defendant  made  their  joint  [or  joint  and 
several]  promissory  note  in  writing,  of  which  the  following  is  a 
copy  [copy  n  te], 

II.  That  at  the  maturity  of  said  note,  the  plaintiff  was  com- 
pelled to  pay,  and  did  pay,  the  same. 

III.  That  no  part  thereof  has  been  repaid  to  him. 

[Demand  of  Judgment.] 

§  1097.    By  Indorser  of  Noie,  havin§  Paid  a  ?art. 

Form  No.  296. 

[TlTLR.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on   the  day ,  18...,  at    , 

the  defendant  made  his  promissory  note,  whereby  he  piomi'^ed 

to  pay  to   the  order  of  the  plaintiff, days   after  date, 

the  sum  of dollars,   for    value    received   [or    copy  the 

note]. 

II.  That  thereafter,  and  before  the  maturity  of  said  note,  the 
plaintiff  indorsed  it  and  negotiated  it  for  value. 

III.  That  at  the  maturity  it  was  presented  for  payment  to  the 
defendant  [or  allege  excuse  for  non-presentment],  but  was  not 
^aid,  whereof  the  plaintiff  had  diie  notice. 

IV.  That  on  the   day  of    ,  18..,  at , 

the  plaintiff  paid  to  one  A.  B.,  the  holder  thereof,  the  sum  of 
dollars,  the  amount  due  on   said  note. 

V.  That  no  part  thereof  has  been  repaid  to  the  plaintiff. 

[Dkmand  of  Judgmknt.] 

§  1098.   Accottiniodation  IliddrSers,  Co-sureties. — In  an 

action  by  an  indorser  of  a  promissory  note,  who  has  paid  the 
same,  against  a  prior  indorser,  it  is  competent  for  defemlant  to 
prove  by  parol  that  all  the  indorsers  were  accommodation  in- 
dorsers,  and  by  agreement  they  were,  as  between  themselves, 
co-securities. 1 

§  101)9.  Legal  Owner. — Where  an  indorser  has  paid  the 
whole  of  a  note,  and  become  the  legal  owner  of  it,  he  may  sue 
'directly  on  the  note.^  But  where  he  paid  only  a  part,  he  must 
sue  for  the  amount  actually  paid,  as  for  money  paid  to  the  use 
of  the  drawer  or  first  in  lorser.3  But  separate  prior  inaorsers 
can  not  be  joined  as  defendants  in  such  an  action."* 

lE-teterlv  V.  Barber,  fi6  N.  Y.  4S8.  v.  Forrand.  6  Burn.  &  Cress.  4-'!9;  Dy- 

«  BrtkiT  V.     MHrtin,    H    Bn-b.    H84;  gert  v  (^n.ss,  9  Barb.  SOti. 
Wri.  ht  V.  BMller,  6  Wend    -J'.K).  *  Barker  v.  Ciussidy,  It)  Barb.  177. 

»  Wrighi  V.  Butler,  Id.  284;  i'ownal 


454  FORMS  OF  COMPLAINTS.  §   1100. 

§  1100.    Payee  against  Maker. 

Form  No.  S97, 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of ,  18  ...,  at ,  the 

defendant  made  and  delivered  to  the  plaintiff  his  promissory  note 
of  which  the  following  is  a  copy  [set  out  copy  of  note]. 

II.  That  he  has  not  paid  the  same  [except dollars, 

paid  on  the day  of ,  18  ...  '.i 

[DKMAND  Oy  JUDQMB!fT.] 

§  1101.  Certificate  of  Deposit — A  certificate  of  deposit  is 
on  the  same  footing  as  a  promissory  note.'  It  changes  the  char- 
acter of  the  maker  from  a  custodian  of  the  funds  to  that  of  a 
debtor  '^  and  the  brokers  become  liable  to  pay  to  the  holder  of 
the  certificate  on  its  presentation.*  In  an  action  by  an  indorsee 
on  a  certificate  of  deposit,  presentation  and  demand  must  be 
alleged  in  the  complaint.* 

§  1102.  Consideration. — In  a  complaint  on  a  promissory 
note  it  is  not  necessary  that  a  consideration  should  be  specially 
alleged.  If  there  is  no  consideration,  the  defendant  should  set 
up  the  want  of  it  as  a  defense.*  Every  note  imports  considera- 
tion.' An  oral  promise  to  convey  land,  in  accordance  with 
which  the  land  is  subsequently  conveyed,  is  a  sufficient  consid- 
eration for  a  promissory  note.^  A  covenant  to  convey  is  a  good 
consideration  for  note  for  purchase  money,  although  the  payee 
of  the  note  who  had  given  the  bond  of  conveyance  had  not  the 
legal  title,  and  could  not  convey  it  when  the  note  became  pay- 
able.8  But  paying  part  of  a  note  when  all  is  due  is  no  consid- 
eration for  an  agreement  to  extend  the  time  of  payment.^* 
Though  the  holder  of  a  promissory  note  which  proves  to  be  void 
may  in  a  proper  case  recover  on  the  consideration  for  which  the 

*Tt  isalwavs  adviaable  in  pleading     days  after  date,  the  sum  of 

under  a  code  to  set  out  the  instrument  dollars. 

sufd  upon  in   the  body  of  the  com-  '  vVelton  v.  Adams,  4  OhI.  37 ;  Brum- 

plnint,  as  thereby  any  mistnke  as  to  mas^im  v.  Tallant,  29  Id.  503. 

the  lepjHl  eff.ct  of  the  instrument  will  »  Nni^lee  v.  Pulmer.  7  Cal.  543. 

loe  avoided,  and  besides  it   will  then  *  MirVIillHti  v.  Richards,  9  Cai.  865; 

not  be  necessary  to  prove  the  execu-  see  Civil  C<)de,  sec.  3095. 

tion  of  the  instrument,  unless  the  ex-  *  Bellows   Falls    Bank    V.    Kutland 

ecution  is  specifically  denied    under  County  Bnnk,  40  Vt.  377. 

oath.    The  following  ailej^ation.  how-  •  Winters  v.  Rush.  34  Cal.  18fi. 

ever,  is  irood,  and  may  be  substituted  ^  Bank  ot  Troy  v.  Topping,13  Wend. 

for  the   first  paragraph   in  the  above  557;  G.ishen  Turnpike  Co.  v.  Hurtin, 

form:  I.     That  on  the day  of  9  .Johns,  217;  Prindle  v.   Caruthers, 

18  ....  at  thede-  15  N.  Y,  425, 

fendaiit  miide    and  delivered  to  the  *  Kratz  v.  Rtocke,  42  Mo,  851. 

Slaiiiliff  his  promissorv  note   of  that  •  Holy  v.  Rhodes,   2   Cranch  C,  O. 

Hie,  and  thereby  promised  to  pay  to  245;  Lnne's  Adm'r  v.  Dyer,  LI.  349. 

the  plaintiff,  or  his  order,  in ^  Lieuing  v.  Guuld,  13*  Cal.  598. 


§   1106.  PROMISSORY  NOTES,  ETC.  455 

note  was  intended  to  be  given,  he  can  not  do  so  unless  the 
pleading  set  out  such  consideration.^  Where  an  agreement  of 
sale  of  personal  property  was  signed  by  the  purchaser  only,  who 
gave  his  note  for  the  price,  it  might  be  inferred  from  the  evi- 
dence of  performance  on  seller's  part  so  as  to  constitute  a  con- 
sideration for  the  note.^  As  the  statute  makes  a  promissory 
note  prima  facie  evidence  of  indebtedness,  though  no  consid- 
eration be  exi)ressed,3  it  is  not  necessary  to  add  an  averment 
that  the  defendant  is  indebted.* 

§  1 103.  Copy  of  Note. — A  complaint  against  a  maker  is 
sufficient  where  it  sets  forth  a  copy  of  the  note,  and  alleges 
that  a  specified  sum  is  due  Ihereon  from  defendant  to  plaintiff, 
although  the  note  is  by  its  terms  payable  to  a  third  person,  and 
there  is  no  allegation  of  an  indorsement  by  him.* 

§  1104.  Date — Variance. — It  is  of  n  oconsequence  whether 
the  date  of  a  promissory  note  be  at  the  beginning  or  end  of  it.* 
But  as  a  variance  would  be  immaterial, '''  the  plaintiff  may  trans- 
fer the  allegation  of    time    and  place  into   one  of   date,  thus: 

That  the  defendant,  by  his  promissory  note,  dated  on , 

at ,  promised,   etc.     A  variance  of    one  month  in  the 

time  of  a  note  described,  was  disregarded  as  immaterial,  the 
defendant  not  having  been  misled. ^  Where  no  time  of  payment  is 
named,  the  note  is  due  immediately,^  and  interest  runs  from 
date  and  without  demand.  On  such  a  note  a  count  stating  no 
time  of  payment  is  good.'^ 

§  1105.  Delivery. — It  is  not  necessary  to  add  an  averment 
of  delivery  where  the  plaintiff  is  the  payee.  "Made"  imports 
delivery.^    Indorsement  lilcewise  imports  delivery. 

§  1106.  D3inand. — No  previous  demand  is  necessary  to 
maintain  an  action  on  a  note  payable  on  demand.^  The  action 
itself  is  a  sufficient  demand,  and  if  there  were  no  days  of  grace 
allowed,  the  note  would  be  payable  immediately  after  delivery. ^^ 
But  an  indorser  after   maturity  is  entitled  to  demand  and   notice 

*  Wayman  v.  Torreyson,  4  Nev.  124.        •  Trowbridge  v.  Didier,  4  Duer,  448. 
'  WeighttnaQ  V.  Caldwell,  4  Wheat.        •  Tiioinpsoii  v.  Ketcham,  8  Johns. 

85.  1R9;  G^vlord  v.  Van  Loan,  15  Wend. 

8  Stewart  v.  Street,  10  Gal,  372.  80:5;  6  Barb.  662;  Bell  v.  Sackett,  38 

*  Oonneclicut    Bank    v.    Smith,    9     Cal.  407. 

Abb.  Pr.  168.  '»  Herrick  v,  Bennett,  8  Johns.  374. 

*  Pri'iidle  v.  Cariithers,  15  N.  Y.  425 ;  "  Churchill  v.  Gardner.  7  T.  R.  596 ; 
Continetital  Bank  v.  Bramhali,  10  Riiss«1l  v.  Whipple,  2  Cow.  636; 
Bosw.  5'93;  Ruyiior  v.  Hoaglaiid,  39  Prindle  v.  Oaruthers.  15  N.  Y.  425; 
N.  Y.  S.  C.  11.  Ke't^itas  v.  Mvers.  19  Id.  2:^1. 

6  Sheppard  v.  Graves,  14  How.  U.  '"  z\b\  v.  Diikes,  12  Cal.  482;  Story 
S.  50o  on  Prom.  Noie-,  sec.  29. 

'  Beutzingv.  Scott,  4  Carr.  &  P.  24.        "  Jieli  v.  Sackett,  38  Cal.  407, 


456  FORilS  OP  COMPLAINTS.  §    J 107, 

oif  non-payment  before  he  is  liable  to  pay.^  As  against  a  maker 
or  acceptor  of  a  note  drawn  payable  at  a  particular  bank  or 
place,  it  is  not  necessary  to  aver  that  a  demand  was  made  at 
place  specified. 2  But  with  the  indorser  the  rule  is  dif- 
ferent.^  Where  a  note  is  payable  in  installments  due  at  differ- 
ent times,  and  demand  on  the  maker  is  not  made  till  the  last 
installment  falls  due,  and  then  demand  is  made  for  the  whole 
amount,  the  demand  is  good  for  the  purpose  of  charging  the 
indorser  for  the  last  installment.'* 

§  1107.  Indorsement. — If  d.  person  who  is  not  a  party  to  a 
promissory  note  indorse  his  name  upon  it  in  blank,  with  intent 
to  give  it  credit,  the  holder  may  write  over  it  an  engagement  to 
pay  it  in  case  of  insjlvency  of  the  maker,  and  if  such  insolv- 
ency be  shown  no  allegation  of  demand  or  notice  is  necessary.* 
A  parol  agreement  between  two  indorsevs  at  the  time  of  in- 
dorsement, to  divide  the  loss  between  them  in  the  event  of  non- 
payment, is  a  collateral  agreement,  founded  on  sufficient  con- 
isideratiou,  and  will  support  an  action.^  Payment  of  a  note  by 
an  indorser  after  protest,  is  a  good  consideration  for  an  assump' 
sit  on  the  part  of  the  maker,  for  the  note,  with  cost  of  protest.' 

§  1 108.  Execution. — The  general  rule  of  law  requiring  proof 
of  the  title  of  the  holders  of  a  note,  may  be  modified  by  a  rule 
of  court  dispensing  with  proof  of  t  le  execution  of  the  note,  un- 
less the  party  shall  annex  to  his  plea  an  affidavit  that  the  note 
was  not  executed  by  him.** 

§  1109.  Foreign  Coin  Note. — ^Where  a  note  is  payable  in 
foreign  coin,  the  value  of  such  coin  must  be  averred.^ 

§  1110.  Forms  of  Notes. — A  written  promise  to  pay  to  **  A. 
B.,"  without  adding"  or  order,"  or  "or  bearer,"  is  a  promissory 
note  within  the  statute  •,^^  but  is  not  negotiable  under  the  civil  code 
of  California.  An  instrument  in  the  following  form :  "Troy,  Au- 
gust 4,  1846.  I  hereby  agree  to  pay  Miss  A.  Y.  twenty  dollars 
per  month  during  her  natural  life,  for  her  attention  to  my  son 
J.  S.  M.  [Signed]  B.  M." — is  not  a  promissory  note.^^    Such 

1  Bpehe  v.  Brooks,  12  Cal.  808.  «  Mills  v.  B«nk  of  United  States,  11 

*  Silver  v.  Henderson,  3  McLean,  Wheau431;  see  Cal.  Code  C.  P.,  sec. 
165;  Payson  v.  Whitcomb,  16  Pick.     447. 

212.  'United  States    ▼.    Hardymnn,  18 

»  United  States  Bank  v.  Smith,  11  Pet.  176;  see  sec.  8238  Civil  Code. 

Wheat.  171.  w  Burcliell  v.  Slocock,  2  Ld    Kavm. 

*  Exstman  V.  Turman,  24   Cal.  379.  1545;  rimith  v.  Kendall,  6  T.  R.  l'23; 
»  Oftut  V.  Hall,  1  Cranch  C.  C.  504;  Downing  v.  Blaokenstoes,  3  Cai.  187 ; 

Id.  572.  Goshen  &  Minisink  Turnpike  Co.  v. 

•Phillips  V.  Preston,  6  How.  (U.  Hurtin,  9  Johns.  217. 

B.)  278.  "  Spear  v.  Downing,  12  Abb.  Pr. 

)  Morgan  v.  Beintzell,  7  Crancb,  273.  437. 


§  1114.  PROMISSORY  NOTES,  ETC.  457 

an  instrument  expresses  no  consideration,  since  it  affords  no  pre- 
sumption that  the  services  referred  to  were  rendered  in  pursuance 
of  a  previous  request  of  the  promisor,  or  that  they  were  beneficial 
to  him.^  On  a  promise  to  pay  "as  soon  as  able,"  a  judgment 
and  execution  are  the  best  test  of  defendant's  ability  to  pay.^ 

§  1111.  Interest. — If  the  holder  of  a  promissory  note  fill  in 
the  rate  of  interest  left  blank  by  the  maker,  he  can  collect  only 
legal  interest ;  but  an  innocent  holder  from  him  can  collect  the 
interest  as  filled  in.^  Interest  need  not  be  averred.  It  can  be 
recovei'ed  as  damages.*  The  filling  of  a  blank  with  the  rate  of 
interest  does  not  thereby  vitiate  the  note.^  If  the  original  note 
offered  in  evidence  contains  an  abbreviation  for  the  word  "  ad- 
ministratrix," and  specifies  the  rate  of  interest  in  figures  only, 
and  the  copy  in  the  complaint  gives  the  word  in  full,  and  states  the 
rate  of  interest  in  words  as  well  as  figures,  the  variance  is  imma- 
terial.^ 

§  1112.  Pleading,  Legal  Effect. — A  note  maybe  set  out 
according  to  its  legal  effect.'  The  difference  between  a  note  pay- 
able on  a  certain  day  and  one  payable  on  or  before  such  a  day  is 
material  when  described  according  to  its  legal  effect.^  A  com- 
plaint pleading  a  note  according  to  its  legal  effect  must  state  a 
payee,  otherwise  it  seems  it  is  demurrable,^ 

§  1113.  Liability  of  Maker. — The  maker  is  bound  by  the 
contract  which  he  signs,  whatever  his  motive  or  purpose  in 
signing  it  may  be,  and  can  not  vary  the  legal  effect  of  his  obli- 
gation by  parol. ^°  A  promissory  note  is  neither  an  account, 
unliquidated  demand,  nor  a  thing  in  action  not  arising  out  of 
contract.^ 

§  1114.  Lost  Paper. — In  case  of  the  loss  or  destruction  of 
negotiable  paper,  as  a  note  or  certificate  of  de])osit,  the  plaintiff 
can  not  maintain  an  action  without  first  indemnifying  the  maker 
against  all  future  claims  upon  it.^^  And  no  distinction  exists 
between  a  note  destroyed  and  one  lost ;  but  in  either  case  a  bond 
of  indemnity  need  not  be  tendered  or  filed  with  the  complaint, 
but  may  be  tendered  upon  the  trial. ^3 

1  Sppar  V.  Downing.  12  Abb.  Pr.  4-37.  Turner's  Ex'rs  t.  White,  4  Cranrh  0. 

»  (  ec-il  V.  Welsh,  2  Bush  (Ky.),  It38,  C  46.5. 

'  Fisher  v.  Dennis,  6  Cal.  577.  ^  Kikiddal  v.  Mitchell,  2  McLean, 

*Chinn  v.  Hamilton,  Hempst.  4-38.  402. 

6  Fisher  v.  Dennis.  6  Cal.  -577  ;  Visher  »  White  v.  Joy,  13  N.  Y.  83. 

V.  Web-ler,  8  Id.  109;  see  Humphreys  '"  Aud  v.  MMsjruder,  10  Cal.  282. 

V.  Crane,  5  Id.  173;  see  ante,  Bills  of  "  Priest  v.  Bounds,  2-5  Cal.  18S. 

Exohanire.  '*  Welton  v.  Adams,  4  Cal.  37  ;  Price 

«  Conoran  v.  Doll,  82  Cal.  82.  v.  Dunlap,  5  Id.  4^3. 

»  Drnke  v.    Fisher,   2  McLean,  69;  '»  Randolph  v.  Harris,  28  Cal.  561; 

Spauldiiig  V.  Evaus,  Id.  139 ;  compare  but  see  Wright  v.  Wri;;ht,  54  IS.  Y.  437. 


458  FORMS  OP  COMPLAINTS.  §   1115. 

§  1115.  Maturity. — It  is  not  necessary  to  show  that  the 
note  was  due  before  the  commencement  of  the  action,^  nor 
that  the  time  for  payment  has  elapsed. ^  An  allegation  that  a 
note  was  given  to  provide  for  payment  does  not  mean  a  present 
payment,  but  a  provision  for  a  future  payment.^ 

§  1116.  Nev/  Promise. — Where  a  creditor  sues  after  the 
statute  of  limitations  has  run  upon  the  original  contract,  or 
after  a  discharge  in  insolvency,  his  cause  of  action  is  not  the 
original  contract,  but  the  new  promise;  and  in  such  case  the 
new  promise  must  be  pleaded.'* 

§  1117.  Non-payment. — In  a  complaint  upon  a  promissory 
note,  an  allegation  of  its  non-payment  is  material,  and  if 
omitted,  the  complaint  is  demurrable.  The  averment  that 
there  is  a  certain  amount  due  upon  the  note  is  insutlicitnt, 
being  a  statement  of  a  mere  conclusion  of  law.*  An  allegation 
in  the  complaint  that  "  no  part  of  said  note,  principal  or  in- 
terest, has  been  paid,"  is  a  sufficient  averment  of  a  breach. ^ 

§  1118.  Note  Held  Adversely. — A-party  who  claims  to  be 
the  owner  of  a  promissory  note,  which  is  at  the  time  in  the  pos- 
session of  another  claiming  title  thereto,  can  not  maintain  an 
action  thereon;  the  maker  being  entitled  to  have  it  delivered 
up,  and  canceled  upon  paying  it.  The  title  to  the  note  could 
not  be  settled  in  such  suit.' 

§  1119.  Negotiability. — In  Indiana  a  promissory  note  made 
payable  at  a  bank  in  that  state  having  an  actual  existence,  is  ne- 
negotiable ;  if  not  so  payable,  it  is  assignable,  but  is  not  commer- 
cial paper ;®  and  in  an  action  brought  thereon  by  a  bona  fide 
holder,  the  maker  is  not  estopped  from  showing  that  there  was 
no  such  bank  in  existence.^  A  promissory  note  providing  that 
it  may  be  paid  at  any  time  before  matuiity,  and  that  interest  at 
eighteen  per  cent  per  annum  shall  be  deducted  till  due,  is  not 
negotiable.^"  A  note  may  be  negotiable  if  payable  certainly  at 
a  fixed  time,  although  subject  to  a  contingency  under  which  it 
may  become  due  earlier.^^  The  current  rate  of  exchange  must 
be  proved  by  extrinsic  evidence ;  tlierefor  a  promise  to  pay   a 

1  Smith  V.  Holmes,  19  N".  Y.  271;  overruling  Smith  v.  Richmond,  19  Id. 

MayiiHtd  V.  THlcoti,  U  Barb.  f)69.  47f). 

2'Peets  V.  Bratt,  6  liarb.  662;  May-  »  Frigch  v.  Caler,  21  Cal.  71. 

nard  v.  Talooit,  II   Id.  5t>9;  Smith  v.  «  .Jones  v.  Frost,  I'S  Cal.  24o. 

Hohnes.  19    N.  Y.  271;  Ketullas   v.  '  Oandall  v.Schro.pp.-l,  1  Him,  557. 

JVJvers,  Id.  231.  ^  Kins^  v.  Vance,  4ii  iiid.  246. 

*Batt8  V.  liosenkrans,  23  How.  Pr.  *  First  Nat.  B'k  v     trrindstaff,  45 

98.  Ii-'l.  1-.8. 

«  MoOormiok  v.  Brown,  S6  Cal.  180,  '"  Way  v.  Smith.  Ill  ]Vlii=8.  .'>2.3. 

and  Ciiabwi  v.   Tucker,  39  Id.   434;  "  Erast  v.  steckmna,  74  t'a.  Su  13. 


§   1123.  PROMISSORY  NOTES,  ETC  459 

sum  cei  tain  with  the  current  rate  of  exchange  added,  is  not  a 
neg  )tiable  note.^ 

§  1120,  Aileg-ation  of  Ownership. — The  averment  in  the 
complaint  tliat  plaintiff  is  the  owner  of  the  note  and  moitoagein 
suit,  is  a  sutfleient  answer  to  a  demurrer,  on  the  ground  that  it 
does  not  appear  by  the  complaint  that  the  plaintiff  is  the  holder 
of  the  note.2  That  the  defendant  made  his  promissory  note  in 
writing,  and  thereby  "promised  to  pay  plaintiff,"  is  sufficient 
to  show  that  plaintiff  is  owner  of  the  note.^  The  averment  that 
the  plaintiff  was  owner  of  the  note  is  not  the  averment  of  an 
issuable  fact.  It  is  the  alle(>aiion  of  a  legal  conclusion,  and  is 
immaterial,  and  sliould  be  omitted.^  For  the  plaintiff  may  re- 
cover without  being  the  holder,  as  where  the  note  has  been 
destroyed  or  lost.*  Or,  as  when  the  note  is  in  possession  of  de- 
fendant.^ In  such  cases  he  may  sue  if  he  is  the  real  party  in  inter- 
est, trustee  of  an  express  trust,  or  person  authorized  by  statute.'' 

§  1121.  Parties. — Persons  severally  liable  upon  the  same 
obligation  or  instrument,  including  the  parties  to  bills  of  ex- 
change and  promissory  notes,  and  sureties  on  the  same  or  sepa- 
rate instruments,  may  all  or  any  of  them  be  include.!  in  the  same 
action,  at  the  option  of  the  plaintiff.^ 

§  1122.  Presentment. — In  an  action  against  the  maker  of  a 
note,  or  the  acceptor  of  a  bill  of  exchange,  in  which  the  place 
of  payment  is  fixed,  it  is  not  necessary  to  aver  presentment  at 
that  place  and  refusal  to  pay.^  But  the  averment  of  present- 
ment and  demand  of  note  at  the  place  specified  is  necessary  to 
charge  an  indorser.^° 

§  1123.  Real  Party  in  Interest. — If  the  holder  of  a  promis- 
sory note  legally  has  its  possession,  and  is  entitled  to  receive 
its  payment,  he  is  the  proper  plaintiff  in  its  prosecntion,  and 
this  without  reference  to  the  party  who  may  ultimately  be  en- 
titled to  a  participation  in  its  proceeds.^ 

1  Lowe  V,  Bliss,  24  111.  168 ;  Hill  v.  *  Snpftrvisors  v.  White,  30  Barb. 72; 

Todd.  29  111.  101.  Dps  Arts  v.  LcgixetU  16  N.  Y.  o82. 

«  Rollins  V.  Forbes,  10  ChI.  300.  'Smith  v.  McClure.   5  EhsI,   476; 

•Moss  V.  Cullv,  1  Or.  147.  Selden  v.  Prinsrle,  17  B^rb.  4f58. 

*  Poorman  v.  Mills,  35  Cal.  118;  ap-  ^  Root  v.  Price,  22   H..w.  Pr.  872; 

provino:  Weddcrspoon  v.   Roi;ers,  32  Butterfield  v.  McOmber,  LI.  160.  See, 

Cal.  5tj9;  see.  als<>,  Flammerv.  Kline,  on  this  subject,  "  Ple»tiinL's." 

9  How.  Pr.  216;  Bank  of  Lowville  v.  •  Oal.  Code  C.  P.,  sec.  383. 

Edwards.  11  Id.  217  ;  Mitchell  v.Hvde,  »  Monlsromerv  v.  Tutt,  1 1   Cal.  307. 

12  Id.  460;   Keteltas  v.  Mvers,    19  N.  ^  Gav  v.  Paine.5  How.  Pr.  107  ;  Fer- 

Y.  231 ;  Farnifrs'  etc.  Bank  v.  Wads-  nerv.  Williams.  14  Abb.  Pr.21>;  U.  S. 

worth,  24  Id.  517;  Niblo  v.  Harris.-n,  Bankv.  Smith,  11  Wheat.  171  ;  Wood- 

7  Abb.  Pr.  447;  Skinner  v.  Stuart,  13  worth  v,  Bk. of  America, 19. L'hns.  419. 

Id.   249;  Ohio  etc   Co.  v.  Goodin,  1  "  Williams  v.  Browu,  2  Jie^es,  486. 

Handy,  31.  Consult  "  Purlies." 


460  FORMS  OF  COMPLAINTS.  §    1124. 

§  1124.  Rate  of  Interest. — On  a  note  made  in  another 
state,  and  bearing  higher  interest  than  is  lawful  by  the  law  of 
the  forum,  the  foreign  statute  need  not  be  pleaded,  for  the 
court  may  presume  that  the  common  law,  by  which  any  rate 
of  interest  is  lawful,  prevails  in  the  law  of  the  place  of  the  con- 
tract.^ 

§  1125.  Substitute  Notes. — A  complaint  is  not  deficient,  in 
stating  a  cause  of  action,  because  after  alleging  valid  notes,  it 
states  that  they  were  given  up  and  canceled  on  the  giving  by  de- 
fendant of  new  notes,  in  which  usurious  interest  was  reserved  for 
the  extension  of  time.  The  plaintiff  may  in  such  a  case  recover 
upon  the  original  notes. ^ 

§  1126.  Value  Received. — The  legal  effect  of  a  promissory 
note  is  the  snme  with  or  without  the  wonis  "  value  received."^ 

§  1127.  Verbal  Conditions. — In  Indiana,"*  it  was  held  that 
a  verbal  condition  could  not  be  annexed  to  a  promissory  note ; 
but  in  New  York  ^  it  was  held  that  a  bill  or  note  may  be  delivered 
to  the  person  beneficially  interested  therein,  upon  conditions  the 
observance  of  which  is  essential  to  its  validity ;  and  the  annexing 
of  sucli  conditions  to  the  delivery  is  not  an  oral  contradiction  to 
the  written  obligation,  though  negotiable,  as  between  the  parties 
to  it  or  others  having  notice. 

§  1128.  Void  Notes. — Notes  given  for  a  gaming  considera- 
tion are  valid  in  the  hands  of  a  bona  Jide  indorsee.^  A  negotia- 
able  note,  the  consideration  of  which  is  asainst  public  policy, 
becomes  valid  in  the  hands  of  an  innocent  hoMer  before  matur- 
ity.' A  promissory  note,  given  for  the  release  of  property 
seized  for  a  toll  imposed  by  the  state  law  on  lumber  floated 
down  a  stream  from  that  state  into  another,  is  void  for  want  of 
consideration. 8 

§  1129.  When  Due. — When  days  of  grace  are  allowed,  the 
day  on  which  the  no  e  became  due  is  excluded  from  the  computa- 
tion.^ And  the  maker  has  all  of  the  last  day  on  which  his  note 
falls  due  to  pay  it,  and  suit  commenced  thereon  on  that  day  is 
premature.^"  A  promissory  note  payable  generally,  without 
specilying  any  time,  is  due  immediately.^^ 

1  Bu<  kinwhousG  V.   Gregg,    19  Ind.  *  C.  R.  L.  Co.  v,  Patterson,  83  Cal, 

(Kprr)4ni.  834 

*  Wiasted  Bank  v.  Webb,  89  N.  Y.  »  Storv  on  Prom.  Notes,  sec.  217; 
825.  Chit,  on  Bills,  403;  Bailey   on  Bills, 

»  People    V.    McDermott,     8    Cal.  24  \ 

28S,  i»  Wilcombev.  Do^ze,  3  Cal.  2f)0; 

*  Potter  V.  Esrnest,  45  Ind.  416.  bpp    DhvIs  v.    EppingHr.   18    Id.  381 ; 
6  Bf nton  V.  Martin,  62  N.  Y.  670.  B-'U  v.  Sickctt,  38  I,].  407. 

«  Hiiiirhi  V.  .I..yc'e.  2  CmI.  64.  n  Hnlm.-s  v.  We,st.  17  Cal.  628,    See 

*  Tliorne  v.  Yuutz,  4  Cul.  321.  ante,  "liills  of  Exchange." 


§   1132.  PROMISSORY  NOTES,  ETC.  461 

§  1 130.  The  Sam3— Oa  Two  Notes,  Ons  being  Partly 
Paid. 

Form  No.  S98, 

[TiTLW.l 

The  plaintiff  comnlains,  and  alleges: 
Firftt. — For  a  first  cause  of  action: 

I.  That  on  the day  of   ,   18    ..,  at  ,  the 

defendant  made  and  delivered  to  the  plaintiff    his  promissory 
note,  of  which  the  following  is  a  copy  [insert  cooy  of  note]. 

II.  That  he  has   not  paid  the  same   [except dollars, 

paid  on  the  day  of  ,  18...]. 

Secon'K — For  a  second  cause  of  action: 

I.  That  on  the day   of   ,   18  ..,  at , 

the  defendant  made  and  delivered  to  the  plaintiff  his  promissory 
note,  of  which  the  following  is  a  copy  [insert  copy  of  the  note]. 

II.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

Wiierefore  the  plaintiff  demands  judgment  against  the  de- 
fend mt  for  the  sum  of   [aggregate  principal],  with  interest  on 

dollars  thereof,  from  the  day  of  ,  and 

with  interest  on dollars  thereof,  from  the  day  of 

,  and  costs  of  suit.^ 

§  1131.  Causes  of  Action. — It  would  seem  that  several 
notes  are  several  causes  of  acion,  and  must  be  separately 
stated.'*     But  it  appears  the  contrary  is  held  in  lowa.^ 

§  1132.     Several  Notes  given  as  Security. 

Form  No.  299. 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  upon   the day  of   ,  18...,  the  defendants 

were  indebted  to  the  plaintiffs  in  the  sum  of dollars. 

II.  That  to  secure  the  payment  of  that  sum,  the  defendants 
made  their  promissory  notes,  copies  of  which  are  hereto  annexed, 
marked  Exhibits  "A,"  "  B,"  and  "  C." 

III.  That  at  the  same  time  the  defendants  agreed  with  the 
plaintiffs,  in  writing,  that  in  case  of  default  in  the  payment  ojf 
any  of  the  said  notes  at  any  time  when  the  same  should  become 

due  and  payable,  the  whole  amount  of  said  sum  of  

dollars  and  interest,  then  remaining  unpaid,  should  forthwith, 
at  the  option  of  the  plaintiffs,  become  at  once  due  and  payable. 

'  If    preferred,   and   in  fact   it   is  unless  the  answer  denyinej  the  same 

the   better   practice,   a    copy  of   the  be  verified :  Cal.  Code  C.  F.,  sec.  447. 

uotes  ra&j  be  set  out,  in  pleading  on  *  Van  Namee  v.  Peoble,  9  How.  Pr. 

■written    instruments.    By  doing   so,  198 ;  Dorman  v.  Kellam,  4  Abb.  Pr. 

the  genuineness  and  due  execution  of  202. 

the  iastrumeat  are  deemed  admitted,  '  Merritt  Vt  Nihart,  11  Iowa,  67. 


462  FORMS  OF  COMPLAmTS.  §    1133. 

IV.  That  the  first  of   said  notes  became  due  and  payable  on 
the day  of ,  18... 

V.  That  defendants   have   not   paid  the   same  nor  any  part 

thereof. 

[Dkmand  of  Judgment.] 
[Annex  copies  of  notes  marked  Ethibita  "  A,"  "B,"  "0."P 

§  1133.     On  a  Note  Signed  by  an  Agent. 

Form  No.  SOO. 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  day  of  ,  18..,  at  ,  the 

defendant,  by  his  agent  [or  attorney  in  fact] ,  duly  authorized 
thereto,  made  his  promissory  note,  and  thereby  promised  to  pay 

to  the  plaintiff  [or  his  order]  dollars, months  after 

said  date. 

II.  That  he  has  not  paid  the  same  [except dollars,  paid 

on  the day  of   ,  18,.]. 

[Demand  of  Judgment.] 

§  1134.  Action  on  Note  Executed  by  Agent. — A  com- 
plaint averring  that  the  principal  by  his  agent,  made  a  promissory 
note,  is  good.^  But  it  has  been  held  that  in  the  common  counts 
it  is  not  necessary  to  state  that  the  defendants  acted  by  an  a^^ent, 
but  that  an  averment  that  the  act  was  the  act  of  the  defendants 
would  be  supported  by  proof  of  the  act  of  their  agent,^ 
Where  the  pleading  shows,  by  setting  out  a  copy  of  the  instru- 
ment, that  the  act  was  by  an  agent,  his  authority  should  be 
averred.*  The  ratification  by  a  principal,  of  an  unauthorized  act 
of  an  agent,  has  a  retroactive  efficacy,  and  being  equivalent  to  an 
original  authority,  an  allegation  of  due  authority  is  sustained  by 
proof  of  such  ratification. 5 

§  1135.    On  a  Note  made  by  Partners. 

Form  No.  SOI. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18..,  at , 

the  defendants  under  their  firm  name  of  A.  B.  &  Co.,  made  and 
delivered  to  the  plaintiff  their  promissory  note,  of  which  the  fol- 
lowing is  a  copy  [insert  copy  of  note] . 

*  It   is    not    necessary    to   alleaje,  Sherman  v.  CSomstock,  2  McLean,  19; 

"agpped  to  deliver  and  ^id  make  and  compHre  Wilson  v.  Porter,  2  Cranch 

deliver  to  the  plaintiffs,"  because  the  C.  Ct. 458. 

copies  are  annexed,  showing  posses-  *  Sherman  v.   N.  Y.  Central  R  R. 

sion  in  the  plaintitf  of  the  said  notes,  Co.,  22  Barb.  239. 

and  because  "made"  implies  delivery;  *McCullough  v.  Moss,  6  Den.  5(57. 

8ee  Brown  v.  South.  Mich.  R.  R.  Co.,  *  Hojt  V.  TiioDipsuii's  Ex'rs,  19  N. 

6  Abb.  Pr.  237.  Y.  207. 

»  Oh  ildres*  v.  Emory,  8  W  heat  642 } 


§1140.  PROMISSORY  NOTES,  ETC.  463 

II.  That  they  have  not  paid  the  same  nor  any  part  thereof . 
[Dkmand  of  Judqmknt.] 

§  1136.  The  Same — Ho\v  Alleged. — Sismnture  of  a  note, 
in  the  name  of  a  firm,  by  a  partner,  may  be  alleged  as  made  by 
the  firm.  It  is  sufficient  to  set  forth  a  writing^  according  to  its 
legal  effect.^  All  the  joint  makers  of  a  promissory  note  are 
principals;  ^  and  suit  must  he  brought  against  them  fdl.3 

§  1137.    Aaother  Form,  Averring  Partnership. 

Form  No.  S02. 

[TlTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  of  making  the  note  herpinifter  men- 
tioned, the  defendants  were  partnt^rs  doing  business  at  , 

under  the  firm  name  of  A.  B.  &  Co. 

II.  That  on  the  day   of ,  18  ...,  at  , 

the   defendants,  under  their   said  firm  name,  made  th-ir promis- 
sory note,  and  thereby   promised  to  pay   the  plaintiff 

dollars months  after  said  date. 

III.  That  they  have  not  paid  tht  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  1138.  Allegation  by  Fa/ee  as  Recei/er  against  Fart- 
ners. 

Form  No.  SOS. 

That  heretofore  the  defendants  under  their  firm  name  of  A. 
B.  &  Co.,  made  their  promissory  note,  and  thereby  promised  to 

pay  to  the  plaintiff,  as  such  receiver  [or  to  his  order],  

dollars on  the da^  of ,  18... 

§  1139.  As  Such  Receiver. — The  act  should  be  averred  as 
that  of  the  party  as  such  receiver.'*  Where,  however,  the  plain- 
tiff's character  is  once  sulTiciently  stated,  the  word  "plaintiff" 
in  subsequent  parts  of  the  pleading  requires  no  addition  to  the 
description. 

§  lUO.  Fartnership. — An  averment  that  the  note  was  in- 
dorsed by  the  defendants  under  a  certain  name  and  description 
is  sufficient.*  "Where  the  fact  of  partnership  is  likely  to  be 
drawn  in  question,  it  is  better  to  aver  the  fact  distinctly.'  The 
denial  of  the  copartnership  of  the  plaintiffs  is  immaterial  unless 
the  defendant  denies  the  execution  of  the  note.^ 

1  ManhHttan  Co.  v.  Ledvard,  1  Cn\,  wrs  contftinod  in    the   compl>»int    in 

192;  VHllettv.  Parker,  6  Wead.  615;  Smith  v.  Levimi«.  8  Id  472;  «'id  see 

see  Hass  v,  Olive,  4  Oarap.  78.  Gould  v.  GImss  19  Bir b.  179 ;  Sheld.-n 

«  Shriver  V.  Lovejoy,  32  Gal.  574.  v.  Hov,  11  How.  Pr.  11. 

•  Woodworth  v.  Spaiford,  2  \fc-  *  Kendall  v.  Fre'smnn.  2  Jlol^ean, 
Lean,  168;  Keller  v.  Blasdel,  1  Nev,  189;  Davis  v.  Ahb.itt.  |,1   j') 

491.  «  ()-,.}w  V.  Co.k,  ^  HtiT.  I')1. 

♦  Merritt  ▼.  Seaman,  6  N.  Y.  '^8,         »  VVUiirtreil  v.  Tuomiv-,  9  (Jul.  4'J9. 
•nd  case*  there  cited.    This  cUute 


464  FORMS  OF  COMPLAINTS.  §1141. 

§  1141.     Sight  Note,  Allegation  ol 

Form.  No.  S04. 

That  on  the day  of ,  18...,  at siid  note 

was  tliily  presented  to  the  defendant  [maker],  with  notice  that 
pajMiient  was  required  according  to  the  terms  thereof.* 

§  1142.     On  a  Note  Wrongly  D^ted. 

Form  No.  SOo. 

[TlTT.TC.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  tlie  day  of    ,  18...,  at ,  the 

defendant  mude  and  delivered  to  the  plaintiff  his  certain  prom- 
issory note,  of  which  the  following  is  a  copy  [insert  copy  of 
note]  ;  that   by   inadvertence  or  mistake  said  note  was  dated  as 

of   the   day  of ,  instead  of  the   said  day  of 

[tljft  date  of  delivery].  j 

II.  That  he  has  not  paid  the  same,  nor  any  part  thereof.  ' 

[Dkmand  of  Judqmknt.] 

§  1143.  Domestic  Corporation,  Payee,  against  a  For- 
eign Corpoiaiion. 

Form  No.  306. 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  [Allege  incorporation  of  plaintiff  under  the  act  as  in  form 
No.  75.] 

II.  That  the  defendant  is  a  corporation,  chartered  by  and  un- 
der the  laws  of  the  state  of  Nevada,  and  pursuant  to  an  act  of  the 
legislatin-e  of  said  state  [title  of  act],  passed  [date  of  enactment]. 

III.  That  on  the  day  of ,  18...,  at ,the 

defendant,  as  such  corporation,  by  one  A.  B.,  its  agent  [or  at- 
torney in  fact],  made  its  promissory  note,  and  then'b}'  promised 
to  pay  to  the  plaintiff,  under  its  corporate  name  of  E.  F.  [or  to 

their  order],  dollars,  months    after  said   date.     A 

copy  of  said  note  is  hereto  attached,  marked  "Exhibit  A,"  and 
made  part  of  this  complaint. 

IV.  That  the  same  has  not  been  paid  nor  any  part  tiiereof. 

[Dkmand  of  Judgmknt.] 

§  1144.  Form  of  Note. — "The  president,  by  the  order  of 
the  board  of  the  A.  B.  Co  ,  promises  to  pay,"  etc.,  signed 
"C.  D.,  Pres.,  E.  F.,"  et  al.,  binds  the  individuals  signing, 
and  not  the  corporation.'  "  The  president  and  directors  of  the 
A.  B.  Co.  will  pay,"  etc.,  signed  "  C.  D.,  Pres.,  E.  F.,"  et  al., 
does  not  bind  the  individuals  signing,  but  only  the  corporation. ^ 

*  Siffht^  is  a  condition  precedent:  2         '  Caphnrt  v.  Dodd,  8  Bu«h,  584. 
Ch.  PI.  28i.  »  Yowell  v.  Dodd,  8  Buah,  681. 


§  1148.  PROMISSORY  NOTES,  ETC.  465 

§  1145.  Insurance  Company. — In  an  action  by  the  in- 
dorsees acjainst  the  maker  of  a  note,  of  which  an  insurance 
company  were  the  payees  and  indorsers,  the  complaint  sliowed 
that  tlie  defendant  made  his  note  to  the  Atlas  Mutual  Insurance 
Company,  or  order;  and  that  the  company  indorsed  it,  and 
transferred  and  delivered  it  to  the  plaintiffs,  but  it  did  not  ex- 
pressly aver  that  the  transfer  was  made  pursuant  to  a  resolution 
of  the  board  of  directors ;  it  was  held  suffleient  on  demurrer. 
If  such  resilutions  were  necessary,  it  was  implied  and  provable 
under  the  allegation  that  the  company  transferred  the  note. 
But  that  is  not  true  if  the  transfer  was  not  made  by  the  proper 
offloer,  and  according  to  law.^ 

§  1146.  Power  of  Corporation  to  mike  Note. — In  the 
absence  of  any  prohibitory  statute,  a  corporation  may  give  a  note 
for  a  debt  contracted  in  the  course  of  its  legitimate  business.* 
Prima  facie,  a  corporation  has  power  to  take  a  promissory  note.^ 
Where  there  is  nothing  on  the  face  of  the  note  to  show  that  it 
was  issued  contrary  to  law,  or  that  the  consideration  or  the 
purpf)se  was  illegal,  the  presumption  is  that  it  was  given  for  a 
lawful  purpose.^ 

§  1147.    Payee  against  Surviving  Maker, 

Form  No.  S07. 

[TlTLK.] 

Tlie  plaintiff  complains,  and  alleges : 

I.  That  at  the  time  of  the  making  the  note  hereinafter  men- 
tioned, the  defendant  and  one  A.  B.  were  partners,  doing  busi- 
ness under  the  firm  name  of  A.  B.  &  Co. 

II.  That  on  the  day   of  ,    18...,    at   , 

they  made,  under  their  said  firm  name,  their  promissory  note  of 
that  date,  of  which  the  following  is  a  copy  [insert  copy  of  note]. 

III.  Tiiat  on  the   day  of  ,   18...,   at   , 

said  A.  B.  died,  leaving  the  defendant  the  sole  surviving  partner 
of  said  firm. 

IV.  That  said  note  has  not  been  paid,  nor  any  part  thereof. 

[DKMA.ND  OF  Judgment.] 

§  1148,  When  Action  Lies — Allegations. — A  joint  ac- 
tion at  law  can  not  be  maintained  against  the  survivor  and 
administrator  of  the   deceased   maker  of    a   promissory   note.* 

1  Nelson  v.  Eaton,  15  How.  Pr.  305.  »  Mutual  Benefit  Life  Insurance  Co. 

»  Mott  V.  HicK  1   Cow.  513,  532;  v.  Davis,  12  N.  Y.  569, 

Moss  V.  Oakley,  2  Hill,  665;  Attorney  *  Sa fiord    v.   VVyckoff,  4  Hill,  442; 

General   v.  Life  and   Fire   Insurance  Barker  v.  Mechanic's  Fire  Ins.  Ccx^ft 

Co.,  9  Paijce  Ch.  470;  Kelley  v.  Mavor  Wend.  94. 

etc.  of    Brooklyn,  4  Hill,  2f?3 ;  Mc-  »  Mnples  v.  Geller,  1  Nev.  233. 

Cullouwh  V.  Miiss,  5  Denio,  5fj7.  ' 
EbTKK,  Vol.  1—30. 


466  FORMS  OF  COMPLAINTS.  §    1149. 

The  rule  in  equity  has  been  that  the  estate  of  a  deceased  joint 
■obligor  could  only  be  reached  when  tlie  survivor  was  bankrupt  or 
insolvent.^  Where  an  action  is  brought  against  two,  as  the  sur- 
vivors of  one  who  executed  a  joint  note,  it  is  not  essential  to 
rallege  ia  the  declaration  that  the  note  was  not  paid  by  the 
deceased.' 

§  1149.  Payee  against  Maker  and  Indorser,  on  Note 
Takea  on  the  Faith  of  the  Indorsement. 

Fonn  No.  308. 
[Title  ] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at  ,  the 

defendant,  A.  B.,  made  his  promissory  note,  and  thereby  prom- 
ised to  pay  to  the  order  of  the   plaintiff,  at ,  the  sum 

of dollars,  months  after  said  date. 

II.  That  the  defendant,  C.  D.,  indorsed  said  note,  when  said 
A.  B.  delivered  the  same  to  plaintiff. 

III.  That  said  note  at  maturity  was  presented  to  said  A.  B. 
for  paytnent,  and  payment  thereof  demanded,  but  the  same  was 
not  paid;  of  all  which  due  notice  was  given  to  the  defendant, 
■CD. 

IV.  That  said  note  was  made  by  the  defendant  A.  B.,  and  in- 
dorsed by  the  defendant  C.  D.,  for  the  purpose  of  paying  for 
[state  what],  on  the  credit  of  such  indorsement;  that  the  de- 
fendant C.  D.  indorsed  the  same  for  the  purpose  of  procuring  for 
tlie  said  maker  a  credit  with  the  plaintiff,  knowing  that  it  would 
be  so  applied,  and  that  said  note  was  so  passed  and  so  indorsed 
by  the  defendant  with  his  privity,  to  the  plaintiff  in  payment  for 
[state  what]. 

V.  That  no  part  thereof  has  been  paid.^ 

[Demand  of  Judgment.] 

§  1150.    First  Indorsee  Against  Maker. 

Form  Ho.  309. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,18...,  at , 

the  defendant,  by  his  promissory  note,  promised  to  pay  to  the 
order  of  one  C.  D., dollars. 

II.  Tliat  the  said  C.  D.  indorsed  the  same  to  the  plaintiff. 

>  Maples  V.  Geller,  1  Nev.  2.33.  Cross,  19  N.  Y.  227.    For  a  complaint 

•Silver  v.  Ht^nderson,   3  McLpRn,  on  instrument  for  payment  of  money 

165;  but  8<'e  Winter  v.  Siinontun,  3  only:  Held  sufficient" agninst  makers, 

Cranoh  0.  Ct.  62.  and   insufficient  agninst  indorsers,  ia 

•  See  as  to  the  authorities  sustain-  Conkling  v.  Gaudail,  1  Xe^es,  228. 
log  a  form  similar  to  this,  Muure  v. 


§1153.  PROMISSORY  NOTES.  ETC.  467 

I  If.  Tiiat  defenilant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Okmand  ot"  Judomkht  ] 

§  1151.  Consideration. — When  the  consideration  passing 
between  the  indorsee  and  his  indorser  is  not  equal  to  the  amount 
of  the  paper,  the  indorsee  as  asjainst  his  indorser  can  recover  only 
the  amount  of  consideration  he  has  paid.^  The  indorsement,  as 
well  as  the  making  of  a  note,  imports  a  consideration. ^  The 
phrase,  in  a  declaration  on  a  note,  that  the  plaintiff  received  it 
"  before  maturity,  honajide^  and  in  due  course  of  trade,"  means 
that  he  took  it  for  value.^ 

§  1152.  Indorsement  by  a  Firm. — An  indorsement  or  signa- 
ture of  a  note,  in  the  name  of  a  firm,  by  a  partner,  may  be  alleged 
as  made  by  the  firm.  It  is  sufficient  to  set  forth  a  writing  accord- 
ing to  ii3  le^al  effect.*  So,  also,  of  joint  makers  not  alleged  to 
be  partners. 5  It  is  sufficient  in  such  cases  to  allege,  generally, 
that  M.  N.  &  Co.  indorsed  it.« 

§  1153.  Owner. —The  holder  of  negotiable  paper  indorsed 
before  maturity,  is  supposed  to  be  the  bona  fide  owner  of  the 
same,  and  all  inten  Iments  are  in  his  favor.'  Nor  is  it  necessarv 
that  he  should  show  how  he  became  possessed  of  the  note.^  His 
right  to  maintain  the  action  can  not  be  questioned  on  the  ground 
that  the  note  belongs  to  a  third  party,  except  defendant  pleads 
payment  to  or  offset  against  that  party.*  So,  it  has  been  decided 
that  the  possession  obtained  before  or  after  maturity  is  prima 
facie  evidence  of  ownership.^"  It  is  no  objection  to  a  recovery 
that  title  be  shown  out  of  the  pa^'ee  by  special  indorsements, 
witliout  any  retransfer  from  the  last  indorsee,  if  there  be  proof 
that  the  indorsees  had  no  interest  in  it.^^  An  allegation  that  the 
plaintiff  (indorsee)  is  owner,  or  owner  and  holder,  is  unnecessary, 
since,  when  title  is  shown,  a  denial  that  he  is  the  lawful  owner 
and  holder,  is  frivolous.^ 

1  Ooye  V.  Palmer,  16  Cal.  158.  •  Mnck  v.  Spencer,  4  Wencl.  411. 

«  Hus^hes  V.  Wheeler,  8  Cow.   77;  «  CuchrHn   v.  Scott,  3  VVeiid.  229; 

Crusjer  V.  Armstrong.  3  Johns.  Chs  5;  Baoou  v.  Cook,  1  Sandf.  77. 

Co'irov  V.  Warren,    Id.  259;  Safford  ^  PHlmer  v,  G-oodwin,   5  C»l.  45S; 

V.  Wyek.'flF,    4   Hill,  442;    Nelson  t.  Hifnmelmann  v.  Hotaling,  40  id.  111. 

Cowir  g,  6  rd.  336;  Wheeler  v.  Guild,  »  Li. 

20  Pick  6.0;  Collins  v.  Martin,  1  Bos.  "  Price  v.  Dunlap,  5  Cal.  483. 

&  P.   648;  Luning  v.  Wise,  1  West  »<>  VLCann  v.  Lewis,  8Ch1    246. 

Coast  R'p.  188.  1'  Nagle  v.  Lvnnan,  14  Cal.  4  >0. 

«  Miller  V.  Mayfield,  37  Miss.  688.  «  Catlin  v.    Uunter,    1  Diier,    258; 

♦  Manhattan  Co.  v.  Lfdvard,  1  Cai.  Fleurv  v.  Roget,  6  Sand*".  64'i :  Poor- 

192;  S  C,  Col.&C.  Cas  2»6;  Vallett  ni>«n  V.  Mills   35  Cal.  118;  Fetch  V. 

V.  Parker.  6  Wend.  616 ;  Bass  v.  Clive,  Beaudry,  40  Id.  439. 
4  Gamp.  68. 


468  foi;ms  of  complaints.  §  1154. 

§  1154      The  Same,  against  First  Indorser, 

Form  i\o.  31G. 

fTlTLK.] 

The  i»laiiitiff  complains,  and  alleges: 

I.  Tliafi  the  defendant  indirsed  to  the  plaintiff  a  prom'ssory 
note,  made  [or  purporting  to  have   been  made]    by   one   A.    B., 

on  the day  of ,  18...,  at ,  to  the  order 

of  the  defendant  to  the  sum  of  dollars. 

II.  That  on  the day  of. ,  18...,  the  same  was 

presented  to  the  said  A.  B.  for  payment,  and  payment  thereof 
demanded,  but  the  same  was  not  paid  [or  state  facts  excusing 
want  of  presentment]. 

III.  That  due  notice  thereof  was  given  to  the  defendant. 

IV.  That  he  has  not  paid  the  same  or  any  part  thereof. 

[UlCMAND  OF  JCDGMBNT.] 

§  1155.  Accommodation  Indorsement. — Where  a  prom- 
issory note  was  indorsed  by  a  tiiird  person  before  delivery  to 
the  payee,  it  was  held  that  such  indorsement  was  prima  facie 
an  accommodation  to  the  payee,  but  proof  that  his  design  was 
to  become  a  surety  or  guarantor  would  make  him  liable  to  the 
payee. ^  Where  a  promissory  note  made  payable  to  S.,  and 
previous  to  its  delivery  to  payee  was  indorsed  for  the  accom- 
modation of  maker  by  H.  and  brother,  and  defendant,  upon 
agreement  that  each  would  become  surety  if  the  other  would, 
they  were  guarantors  jointly  and  not  severally  liable.'  To  create 
a  several  liability,  express  words  are  necessary. ^ 

§  1156.  Demand,  how  Made  and  Alleged. — Payment  of 
the  note  must  be  first  propsrly  demanded  of  the  makers,  and 
due  notice  given  to  the  indorser,  before  any  legal  liability  at- 
taches to  the  latter ;  and  it  is  incumbent  upon  the  pleader  to 
state  these  facts.*  That  as  against  the  indorser,  an  averment 
of  demand  at  the  place  designated  is  deemed  necessary.*  If 
there  are  stated  business  hours  at  the  place  where  it  is  made 
payable,  presentment  and  demand  must  be  made  within  those 
hours. ^  If  a  promissory  note,  payable  on  demand,  or  at  sight, 
without  interest,  is  not  duly  presented  for  payment  within  six 
months  from  its  date,  the  indorsers  thereof  are  exonerated, 
unless  such  presentment  is  excused.'  But  if  payable  at  sight 
or  on  demand  with  interest,  mere  delay  in  presenting  does  not 

»  Clarke  v.  Smith,  2  Cal.  605.  11  Wheat.  171.    See  Civil  (Jode,  sec 

»  Bi-ady  V.  Reynolds,  13  Cal.  31.  8131. 

8  Id.  «  McFarland  v.  Pico,  8  Cal.  626. 

*  Conklin  v.  Gandall,  1  Keyes,  228  ^  California  Civil  Code,  sec.  3248, 
'  Bank  of  United  States  v.  Smith, 


§1158.  PROMISSORY  NOTES,  ETa  469 

exonerate  any  party  thereto.^  The  failure  to  make  presentment 
and  demand  would  not  discharge  the  debt,  but  would  only 
affect  the  question  of  costs  and  damages. *  In  an  action  against 
the  inlorser  of  a  bill  or  note,  an  allegation  of  a  demand  in  gen- 
eral terms,  "although  often  requested,"  etc.,  is  good  after  ver- 
dict. ^  But  if  the  note  was  made  payable  at  a  particular  place, 
an  allegation  as  in  preceding  form  will  be  sufficiently  specific 
averment  of  demand  and  notice.  The  contract  of  the  indorser 
of  a  promissory  note  is  a  written  one,  and  his  liability  a  condi- 
tional one,  to  pay  upon  a  proper  demand  and  notice,'*  upon  a  de- 
mand upon  the  maker  made  within  a  reasonable  time,  and  that  in 
the  event  of  his  failure  to  do  so,  the  indorser  will  pay.^  And 
the  contract  can  not  be  changed  from  a  conditional  to  an  ab- 
solute contract  by  parol  evidence.' 

§  1157.  Demand  and  Notice,  Allegation  of  Excuse  for 
Om'ssioa  of. — An  express  waiver  of  notice  of  non-pa3'ment  is 
sufficient  excuse  of  demand  and  notice  of  non-payment.'  And 
this  may  be  done  by  an  agent  of  the  indorser,  and  a  verbal  waiver 
of  dt'mand,  or  of  demand  and  notice,  may  be  proved. ^  But  the 
declaration  of  the  indorser,  made  to  a  third  person,  "that  notice 
not  having  been  given  at  the  proper  time  would  make  no  difference 
to  him,  and  that  he  would  do  what  was  right,"  is  not  a  waiver.^ 
Where  payment  by  the  maker  to  the  indorser  is  relied  upon  as 
an  excuse,  it  must  be  payment  directly  and  specifically  for  the 
note,  not  as  security  for  transactions  in  the  aggregate. ^°  If  the 
waiver  was  before  maturity,  it  operates  as  an  estoppel  to  the 
indorser  from  denying  that  demand  was  made  and  notice  given, 
and  evidence  of  such  waiver  is  admissible  under  the  averment 
of  demand  and  notice. ^^ 

§  1 158.  Indorsement,  Averment  of. — An  averment  in  the 
declaration  that  the  note  was  indorsed  by  the  defendants  under 
a  certain  name  and  description,  is  sufficient.  Where  a  contract 
shows  a  joint  liability,  it  is  unnecessary  to  allege  a  partnership. i^ 
The  fact  of  the  indorsement  only  need  be  pleaded  to  show  title 
in  the  plaintiff,  and  an  averment  that  the  plaintiff  is  the  owner 

*  M..  gees.  3214,  32*7.  see   also   Drinkwater  v.  Tebbetts,  17 
«  MonluomHiy  V.  'I'utt,  11  Cal.  307.     M*'.  16,  where   notice  was  waived  in 

*  Li'tQiigwell    V.  White,    1    Johns,     writing. 

Cas  9't.  »  Olt-iidorf  V,  Swartz,  5  Cn1.  480. 

*  lioldman  v   Davis,  23  Cal.  256.  * '  VanNorden  v.  Buckley.  6  Cui.  288. 
s  Ivcyes    V.   Feiislermaker,  24   Cal.         i'  Holmes  v.  Hulmes,  9  N.  Y.  525, 

829.  Cndiington  v.  Davis,  1  N.  Y.  186;  see 

6  G-tldman  v.  Davis,  28  Cal.  256.  Civil  Cixle,  sec.  3156. 

'  Miiih»-v  V.  Gailv.  4  Cal.  62;    Vfin-  ''Mvendall   v.  Freeman,  2  McLean, 

turn  v   Fisher,  7  Id." 573.  186;  Davis  v.  Abbott,  Id.  29. 
«tSue  Mills  V.  Beard,  19  Cal.  158; 


470  FORMS  OF  COMPLAINTS.  §   1159. 

and  holder  is  a  conolnsion  of  law,  and  need  not  be  pleaded.* 
Where  an  indorsement  upon  a  promissory  note  was  made,  not 
by  the  payee,  but  by  persons  who  did  not  appear  to  be  other- 
wise connected  with  the  note,  and  the  note  thus  indorsed  was 
handed  to  the  payee  before  maturity,  a  motion  to  strike  out  of 
the  declaiation  a  recital  of  these  facts,  and  also  an  allegation 
that  this  indorsement  was  thus  made  for  the  purpose  of  guar- 
anteeing the  note,  was  properly  overruled.*  In  an  action  against 
a  corporation  as  indorsers,  it  need  not  be  averred  that  the  note 
was  indorsed  by  the  defendants  in  the  cour^^e  of  their  legitimate 
business. 3 

§  1159.  Indorsement,  EflFect  of. — ^The  presumption  is  that 
the  indorser  of  a  promissory  note  is  the  holder  thereof  for  value.* 
Where  a  promissory  note  is  indorsed  in  blank,  the  title  and 
right  of  action  pass  by  delivery,  and  the  note  is  payable  to  the 
bearer.'  An  unlawful  diversion  is  not  to  be  presumed,  but 
negotiation  to  a  bona  fide  holder  may  be  presumed,  where  the 
paper  bears  the  blank  indorsement  of  the  defendant.'  An 
agent  who  has  received  a  promissory  note  by  indorsement,  holds 
the  title  as  against  all  persons  thereto,  except  the  principal,  and 
may  maintain  an  action  thereon  in  his  own  name.' 

§  1160.  NotiC3  to  Charge  Indorser. — Notice  of  demand, 
as  well  as  of  non-payment,  should  be  alleged.^  A  general  aver- 
ment of  notice  of  all  the  premises  is  sufficient.*  Where  a  note 
is  due  on  the  first  of  July,  the  fourth  being  a  non-judicial  day, 
notice  of  protest  on  the  third  is  premature,  and  will  not  charge 
the  indorser.^*'  In  California,  whenever  any  act  of  a  secular  na- 
ture, other  than  a  work  of  necessity  or  mercy,  is  appointed  by 
law  or  contract  to  be  performed  upon  a  particular  day,  which 
day  falls  upon  a  holiday,  it  may  be  performed  upon  the  next 
business  day,  with  the  same  effect  as  if  it  had  been  performed 
upon  the  day  appointed.^*  If  much  time  intervenes  between  de- 
mand and  notice,  in  transfers  after  maturity,  the  question  may 
arise  whether  the  delay  has  not  released  tiie  indorser.^^  When 
demand  of  payment  is  made  upon  the  maker  of  a  note  payable 
on  demand,  notice  of  demand  and  non-payment  must  be  given 

'  Poornnnn  v.  Mills,  8t  Cal.  IIR,  •  Tli^e  v.  Isham,  1  Keves,  44. 

*  Rej  V.  SJmpuou.   22  How.   U.  S.         »  Poorman  v.  Mills,  86  Cal.  118. 
S41.  •  I'atiquiiique   Bank  v.   Marlin,  11 

...     ,      ,..>,,       ..      .  ..  _^^,jj_  Pr.  2«n. 


*  Mechnnios'  Banking  As.sopiation  v. 
Sprinti  Vrtlley  Shot  and  Le.td  Ui>.,  25 
Barh.  419;  Nelson  v.  Eaton,  15  How. 


»  lioot  V.  Franklin,  8  Johns.  207. 

"  Toothaker  v.  Cornwall,  8  Cal.  144. 
Pr.  ;^0->.  "  ChI.  Civil  Code.  9«c.  11. 

♦  I'.ormaa  v.  MiUs,  36  Cal.  118.  "  Tliomusun  v.  Williams,   H   Cal. 

•Id.  ICO. 


§   1162.  PROMISSORY  NOTES,  ETC.  471 

to  the  indorser  within  the  same  time  wliich  is  required  in  the 
case  of  a  bill  made  payable  at  a  particular  day  ;^  and  it  should 
be  made  on  the  day  following  the  demand,  unless  good  reason 
exists  for  not  doing  so.^  An  indorser  who  signs  his  name  under 
the  words,  "holden  on  the  within  note,"  is  entitled  to  notice  of 
demand  and  non-payment.' 

§  1161.  Notice,  how  Given. — Notice  should  be  personally 
served,  if  indorser  resides  in  the  same  city,  and  in  such  case 
service  through  the  post-offlce  is  not  sufficient.*  To  charge  an 
indorser,  it  is  not  necessary  to  show  that  the  notice  of  dishonor 
was  actually  received  by  him,  nor  even  that  it  was  addressed  to 
him  at  his  place  of  residence.*  Notice  left  by  a  notary  at  the 
residence  of  the  indorser,  he  being  at  the  time  absent,  but  not 
signed  by  any  one,  is  insufficient  to  charge  the  indorser.^  If 
the  notary  in  good  faith  use  due  diligence,  and  acts  upon  in- 
formation from  proper  parties  in  mailing  his  notice,  the  indorser 
will  be  charged,  notwithstanding  the  notice  may  be  sent  to 
the  wrong  place  and  never  reach  him.''  Notice  of  protest  of  a 
note  left  at  the  house  in  Washington  of  a  member  of  congress, 
after  congress  had  adjourned,  and  he  had  left  the  city  as  was 
his  cu  torn  at  such  times,  and  his  domicile  was  in  the  district  he 
represented,  and  his  Washington  house  was  occupied  by  stran- 
gers by  his  permission,  who  did  not  pay  rent,  is  not  sufficient.® 

§  1162.  Notice,  Sufficiency  of. — A  notice  is  sufficient,  if 
from  it,  it  can  be  reasonably  inferred  that  the  note  was  pre- 
sented and  dishonored  ;9  but  if  it  state  that  the  demand  was 
made  on  a  day  subsequent  to  maturity,  it  will  not  bind  the  in- 
dorsers.^"  The  certificate  need  not  state  the  form  of  notice 
given,  as  any  notice  is  sufficient  which  informs  the  party,  either 
by  express  terms  or  by  implication.'^  Whether  verbal  or  writ- 
ten, and  even  without  description  of  the  note,  if  at  the  time  of 
receiving  notice  he  knew  the  paper  referred  to,  it  is  sufficient. i' 
Where  notes  are  indorsed  before  maturity,  the  notice  must  state 
the  time  of  the  demand  and  dishonor ;  but  it  is  otherwise  where 
the  note  was  indorsed  after  maturity,  A  notice  by  the  holder 
that  he  had  "  demanded  payment  of  that  note,"  implies  a  de- 

1  Keyes  V.  Fenstermaker,  24  Cal.  ^  Bayiy'g  Adm'rv.  Chubb,  16  Gratt. 
829.  (Vh  )   284.    As   to  service   of    notice 

2  Id.  under  the  Civil  Code  ol  Cal ifornin,  see 
«  Vance  v.  Collins,  6  C«l.  435.  see.  3144. 

♦  Id.;  but 8Pe  Civil  Code,  sec.  3144.  »  StMUshton   v    Swan.   4   Cal.  213; 

»  Carver  V.  Di)wnie,  83 Cal.  176.  Cal.  Civil  Code,  see.  3l4i. 

«  Kloekenbaum   v.  Pierson,  16  Cal.  i»  IVvis  v.  Wood,  5  Cal.  808. 

876  "  McFarland  v.   Pi<o,  8   Cal    626. 

»  Garver  V.  Downie,  33    Cal.   176.  "  Ibomi>8ouv.William8,UCal.l60. 


.472  FORMS  OF  COMPLAINTS.  §1163. 

mand  of  the  maker ;  and  the  declaration  that  he  intended  to  look 
to  the  indorser  for  payment,  implies  non-payment.^ 

§  1163.  Notice,  how  Alleged. — Where  the  complaint 
against  the  indorser  of  a  note  alleges  due  demand,  non-payment, 
and  protest,  and  that  due  notice  of  such  non-payment  and  pro- 
test was  given,  it  is  sufficient,  without  averring  notice  of  demand 
also.^  A  general  averment  of  due  notice  is  sufficient  to  charge 
an  indorser. 3  "  That  the  note,  on  the  day  it  matured,  was  pre- 
sented for  payment  at  the   banking  house   of  ,  and 

payment  thereof  demanded,  and  thereupon  the  same  was  duly 
protested  for  non-payment,"  is  a  sufficient  notice  of  demand, 
refusal,  and  non-payment,  to  charge  the  indorser.^ 

§  1164.  FreBentment. — An  averment  that  at  maturity  the 
notes  were  duly  presented  for  payment  to  the  makers,  is,  upon 
demurrer,  a  sufficient  averment  of  a  presentment  at  the  plac^ 
specified  in  the  notes. ^  Nor  need  it  be  shown  by  whom  it  was 
presented.^  An  allegation  of  presentment  by  a  bank  does  not 
imply  ownership,  but  at  most  a  holding  as  agent  for  another,' 
where  it  was  alleged  in  a  declaration  that  a  note  when  due  was 
presented  to  the  bank  for  payment,  to  wit,  twenty-third  of  July, 
1841,  it  was  held,  that  the  statement  of  the  date,  being  inconsist- 
ent with  the  allegation  that  the  note  was  presented  when  due, 
should  be  rejected  as  surplusage. ^ 

§  1165.  Presentment  and  Demand. — To  charge  an  in- 
dorser of  a  note  payable  on  demand,  presentment  must  be 
made  within  a  reasonable  time,  and  what  constitutes  a  reason- 
able time  depends  upon  the  facts  of  each  particular  case.^  If 
delay  has  occurred,  the  holder  must  aver  and  prove  the  circum- 
stances  excusing  the  delay. ^*  A  delay  of  thirteen  months  was 
held  unreasonable.^  After  presentment  and  demand,  the  lia- 
bilities of  the  parties  become  fixed. ^  But  the  presentment  and 
demand  must  be  made  in  reasonable  hours,  and  reasonable 
hours  depend  upon  the  question  whether  or  not  the  bill  is  pay- 
able at  a  bank  or  elsewhere. ^^  ^nd  when  a  promissory  note  is 
protested,  the  protest  must  be  attended  with  all  the  incidents 

iThompsonv.WiHiama.  14Cr1.  160.  C,  5  Eng.  Com.  L.  R.  459;  and  see 

'  Speticer    v.    Rogers  Locomotive  Hunt  v.  Maybee,  7  N.  Y.  '2rt6. 

"Works,  17  Abb.  Pr.  110.  '  Farmers'  and  Mechanics'  Bank  v. 

«  Firih  V.  Thrush,  8  Barn.  &  Cress.  "Wadsworth,  24  N.  Y.  547. 

887;  S.  C,  2  Man.  &  R.  3u9;  Dwight        *  Hvslop  v.  Jones,  3  McLean,  96. 

V.  Win}?,  2  McLean,  680.  •  Keyes  V.  Fenstermaker,  24  Cal.  329. 

*  Eastman  v.  Turman,  24  Cal.  379.        "  Id. 

'Fernerv.  Williams,  37  Barb.  9;  14  »'  .Jerome  v.  Stebbins,  14  Cal.  474. 
Abh.  Pr.  215.  J«  M.Farlttiid  v.  Pico,  8  CaU  628, 

•  Jiuehm  V.  Campbell,  Gow.  66;  S.        «3  id. 


§   1170.  PROMISSORY  NOTES,  ETC.  473 

of  a  foreign  bill  of  exchange.^  Presentment  of  a  note  to  a  joint 
maker  is  excused,  if  at  the  time  of  the  execution  and  maturity  of 
the  note,  such  maker  resided  in  a  state  other  than  that  in  which 
payment  should  be  made.^ 

§  1166.    Allegation  of  Notice  to  Indorser  Waived. 

Fo?-m  No.  Sll. 

That  the  defendant  [indorser]  thereafter  waived  the  laches  of 
the  plaintiff  in  not  giving  him  notice  thereof,  and  promised  to 
pay  said  note. 

§  1167.  Allegation  of  Excuse  for  Non-presentment — 
Maker  not  Found. 

Form  No.  StS. 

That  at  the  maturity  of  said  note,  search  and  inquiry  was 
made  for  said  John  Doe,  at  [place  of  date  of  note],  that  the 
same  might  be  presented  to  him  for  payment;  but  he  could  not  be 
found,  and  the  same  was  not  paid.  [Note. — State  any  facts 
relative  to   search   and  inquiry,  and   failure  to  find  the  party.]* 

§  1168.  Allegation  of  Promise  to  Pay. — There  is  a  dis- 
tinction between  a  promise  by  the  indorser  to  pay,  proved  as 
presumptive  evidence  of  actual  notice,  and  a  promi^se  proved  as 
evidence  of  a  waiver.  The  former  should  not  be  alleged ;  the 
latter  should.* 

§  1169.  Protest. — There  is  no  necessity  of  protesting  a 
promissory  note.  A  demand  of  payment  and  refusal,  and  notice 
to  the  indorser  are  all  chat  is  required. ^  It  is  but  a  form 
of  evidence  of  demand  and  notice.  A  simple  averment  of 
presentment  and  refusal  to  pay  is  sufficient.^  An  averm-  nt  of 
protest  does  not  imply  <*  proper  demand.'  An  averment  that  a 
note  protested  is  not  equivalent  to  an  averment  that  it  was 
duly  presented  for  paymeut  to  the  maker,  and  payment  was  re- 
fused. ^ 

§  1 170.    The  Same — Against  Maker  and  First  Indorser. 

Funn  No.  SIS. 
[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

1.  Thatou  the day  of ,  18..,   at ,  the 

>  Tevis  V.  RHndftll,  6  Cal.  632.  yee  v.   Pennison,  Id.  248;   Junes  v. 

'Liming    v.   Wise,    1    West  Coast  O'Brien,  2ti  Kng.  L.  &  Eq   2H8. 

Eep   138.  *1  Pars,   on    Cont.  238;    Edw.  on 

*  Of  course  the  alle^fttion  depends  Bills,  268;  Coddintjton  v.  Oavi-,  1  N". 

upon    the   facts  in  each  case.     As  to  Y.    18(5;  McFarl^nd   v.    Pico,  8   Cal. 

sufficiency  of  this  form,  see  2  Ch.  PI.  626;  Cole  v.  Ji-ssiip,  10  H..w,  Pr.  516. 

134.  *  Prire  v.  McClave,  6  Du<'r,  514. 

'  Thornton  v.    Wynn,   12    Wh^at.  '  Griham  v.  MHchiidn.  6  Dut^r,  515; 

188.     Leonard  v.  Gary.  10  Wi-nd  504 ;  Price  v.  McClave.  Id   5U. 

'irobelisv.    D..wd,  '23    Wend.  379;  *  Price  V.  McClave,  3  Abb.  Pr.  263. 
Miller  v.  Hackley,  6  Jolius.  376;  l>ur* 


474  FORMS  OF  COMPLAINTS.  §1171. 

drfenrlant,  A.  B.,  by  his  promissory  note,  promised  to  pay  to  the 
defeiKlaiit,  C.  D.,  dollars,    months  after  date. 

II.  That  the  said  C.  D.  indorsed  the  same  to  the  plaintiff, 

III.  Tliat  on  the  day  of  ,  18..,.,  the  same  was 

presented  to  the  said  A.  B.  for  payment,  but  was  not  paid. 

IV.  That  due  notice  thereof  was  given  to  the  said  C.  D. 

V.  That  they   have  not  pai  i  tlie  same,  nor  any  part  thereof. 

[Dkmand  of  Judgment.] 

§  1171.  Discharge  of  Indebtedness, — Giving  a  note  pay- 
able at  a  future  time  does  not  discharge  the  debt.^  So  when  a 
note  is  given  for  an  account.'  The  substitution  of  a  new  security 
will  discharge  the  indorser.^  Where  a  person  sued  on  a  note 
which  had  two  indorsements,  signed  by  the  payee,  the  first  a  re- 
ceipt for  tlie  amount  due,  and  the  second  in  the  words,  "witliout 
recourse  to  me,"  there  was  no  presumption  that  the  indorsements 
were  made  at  different  times,  or  that  payment  was  voluntary  and 
unconditional.^ 

§  1172.  Indorsement. — The  allegation  of  indorsement  to  the 
plaintiff  is  essential. 5 

§  1173.  Joint  and  Several  Liability. — In  New  York  the 
assignor  and  maker  of  non- negotiable  paper  can  not  be  joined  in 
an  action  thereon  by  the  assignee.^ 

§  1174.  Indorsee  Against  Maker,  on  Note  Drawn  to 
Maker's  Own  Order. 

Form  No.  SI4. 

[TlTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That   on  the day  of ,18....,  at ,  the 

defendant,  by  his  promissory'-  note,  promised   to   pay  to  bearer 

[or   to  his  own  order], dollars, mouths  after  date 

[or  on  demand], 

II.  That  the  same  was  by  the  indorsement  of  the  defendant 
transferred  to  the  plaintiff. 

III.  That  defendant  has  not  paid  the  same,  nor  any  part  thereof. 

[Dkmand  of  Judgment.] 
§  1175.  Indorsement  Essential.— It  would  seem  that  when 
a  note  is  drawn  to  the  drawer's  own  order,  the  indorsement  by 
the  maker  is  necessary  to  pass  the  title'    But  in  New  York  it  is 
provided  otherwise  by  statute.^ 

*  Brewster   v.   Bours,  8   Cal.    502;  «  White  v.  Low,   7  Barb.  201;  and 

Smiili  V.  Owens,  '11  Id.  11.  see  Allen  v.  Fosgate,  11  How,  Pr.  '218, 

2  1iiiriri„8v.  VVortell,  18  Cal.  330,  '  Mncteison  v.  Tln.ytos,  I'enke's  N, 

'Smith  V,  HMPper,  5  ChI.  329.  P,  C.  29;    Bosanqmt  v,  Anderson,  li 

«FrHnk  v.  BrHdv,  8  (^al,  47.  E>|>   A:i;  Smith  v.  Lusher,  6  Tow.iiSS. 

»  Monhtiiuo    V.  ■  Keihiier,   11    Iowa,  8-2   K.S.N.   Y.  5:5;  and  see   Plels  v. 

60a;  Bennett  V.  Cro'Aell,  7  Minn.  3b6.  Johnson,  3  Hill,  1J2;   Masters  v.  Bar- 


I   1179.  PROMISSORY  NOTES,  ETC.  475 

§  1176.     Subsequent  Indorsee  against  Maker. 

Form  A'o.  Slo. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  [Allege  making  of  note.] 

II.  That  the  same  was,  bv  the  indorsempnt  of  the  said  C.  D. 
and  L.  M.  and  N.  O.  [or,  and  others],  tianai erred  to  the 
plaintiff. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Dkmavd  of  .TunaMKNT.] 

§  1177.  AUegatioa  of  Indorsements. — The  nse  of  the 
words  "and  others"  will  perhaps  obviate  the  necessity  of  prov- 
ing the  indorsements,  which  if  stated,  must  be  proved.  It  is 
not  necessary  to  state  all  the  Indorsements,  as  possession  by 
plaintiff  and  production  at  the  trial  is  a  legal  presumption  that 
he  is  the  owner,  and  for  value.^  Nor  to  allege  genuineness  of 
indorsements.^  If  the  defendant  on  the  trial  prove  loss  or 
theft  of  the  note  in  rebuttal  of  such  presumption,  the  plaintiff 
may  prove  that  he  took  the  note  in  good  faith,  and  for  a  valuable 
con>iideration.3 

§  1178.  The  Same — Against  First  Indorser— Indorse- 
ment Special. 

Form  No.  S16. 

[TlTLK  ] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  indorsed  to  one  A.  B.  a  promissory  note 

made   by   one   C.  D.,  on  the   day   of ,   18..,  at 

,  to  the  order  of  the  defendant,  for  the  sum  of  

dollars,  payable  days  after  date. 

II.  That  the  same  was  l»y  the  indorsement  of  the  said  A.  B. 
transferred  to  tlie  plaintiff  [or  that  the  said  E.  F.  indorsed  the 
same  to  the  plaintiff]. 

[Dl£>IA.yi>  OF  JUDQMKNT.] 

§  1179.    The  Sams — Against  Intermediate  Indorser. 

Form  No.  S17. 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  a  promissory  note  made  by  one  A.  B.  on  the day 

of  .,  18...,  at    ,  to  the  order  of  one  C.  D.,  for 

rets,  2  Carr,  &  K.  715;  S.  C,  Bl  Eng.  Peacock  v.  Rhodes,  2  Douirl.  633;  4 

Com.  L.  714.  S^ndf.  97;   Millis  v.  Barhtr,  1  Mee.  & 

»  Smith  V.  Schanck.  18  Birb.  844;  W.  425;  Ue  la  Chaum^tte  v.  Bank  of 

James  V.  Clialmors,  2  Sold.  209.  Eiiijland,  9     Barn,  &   Cr^.ss.    208;    2 

»  Peiitz  V.  Wiiiterbottom.  5  Den.ftl.  C  impb.    5;    Miller   v.  Race,  1    Burr. 

3  Cm  tin  V.  Ha(i!>er,  1  Diier,  30^;  452;  Grant  v.  Vaughan,  3  Id.  1516. 
Bochesler    v.  Taylor,  23    Barb.    18; 


476  FORMS  OF  COMPLAINTS.  §    1180. 

the  sum  of dollars  [payable  days   after   date], 

and  Indorsed  by  the  said  C.  D.  to  tlie  defendant,  wns  by  the  in- 
dorsement of  the  defendant  transferred  to  the  plaintiff. 
II.,  III.,  and  IV.  [Same  as  in  form  No.  313.] 
[Demand  OF  Jcdgmknt.] 

§  1180    The  Same — A^alast  his  Immediate  Indorser. 

Form  No.  S18. 

[TlTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That   the  defendant    indorsed  to  hira  a   promissory   note 

made  by  one  A.  B.  on  the  ....  day  of  ,  18 ,  at  , 

to  the  order  of  one  C.  D.,  for  the  sura  of 'lollars.  pay- 
able  days  after  date,  and   indorsed  by  the  said  C.  D, 

to  the  defendant. 

II.,  III.,  and IV.  [As  in  form  No.  313.] 

[Dkmand  of  Judgmknt.] 

§  1181    The  Same— Against  All  Prior  Parties. 

Form  No.  S19. 

[TlTLTC.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of ,  18 . . ,  at , 

the  defendant  A.  B.,  by  his  promissory  note,   pimii^'^d    to  pay 

to  the  order  of   the  defendant  C.  D dollars, 

months  after  date. 

II.  That  the  said  C.  D.  indorsed  the  same  to  the  defendant 
E.  F.,  who  indorsed  it  the  plaintiff. 

III.  That  on  the day   of ,18..,  the  same  was 

presented  [or  state  facts  excusing  presentment]  to  the  said  A. 
B.  for  payment,  but  it  was  not  paid. 

IV.  Tliat  notice  thereof  was  given  to  the  said  C.  D.  anrl  E.  F. 

V.  That  the  same  has  not  been  paid,  nor  any  part  thereof. 

[Dkmand  of  Judgmkn^t.] 

§  1182.  Transfers  not  by  Indorsement — By  Assignee 
of  Note. 

Form  No.  320. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18....  at , 

the  defendant,  by  his  promissory  note,  proraised  to  pay  to  the 
order  of   one  A.    B., dollars, days  after  date. 

IE.  That  said  A.  B.  sold  and  delivered  said  note  to  the 
plaintiff   [for   a  va  uable  consideration,  before    it  was  payable]. 

III.  That  the  defendant  has   not  paid  the  same,  nor  any  part 

thereof. 

[Djcmand  of  Judgment] 


§   1184.  PROMISSORY  NOTES,  ETC.  477 

§  1183.  Allegations  of  Assignmsnt. —  \n  nvernipnt  that 
the  note  was  assigned  on  the  day  or  at  the  time  of  its  execution 
is  sufficient.^  But  consideration  need  not  be  averred. ^  By  the 
assignment  of  the  note  alleged,  the  plaintiff  acquired  tiile  to 
the  note,  and  tlie  action,  under  the  code  could  be  maintained 
in  his  own  name.^  Under  the  common  law,  if  it  appeared  from 
the  declaration  that  the  note  was  not  yet  payable,  a  demurer 
would  lie.^  If  the  complaint,  not  verified,  sets  out  the  note, 
and  avers  assignment  by  payee  to  plaintiff,  and  the  answer  is 
a  general  denial,  the  plaintiff  must  prove  the  assignm^nt.^  In 
an  action  against  the  maker  of  negotiable  paper  payable 
to  bearer,  it  is  sufficient,  after  alleging  tiiat  the  defendants  drew 
it,  to  allege  that  it  was  transferred  and  delivered  to  the  plaintiff 
witliout  saying  by  whom,  if  it  be  also  alleged  that  the  transfer 
was  for  value,  and  that  the  plaintiff  was  the  owner.®  The 
allegation  on  a  note  payable  to  bearer  is  sufficient,  if  it  allege 
that  it  is  his  property,  and  that  the  amount  is  due.'  In  case  the 
note  is  pa^'able  to  the  order  of  a  fictitious  person,  and  in  case 
it  is  payable  to  the  maker's  own  order,  it  is  in  law  paj'able 
tobearer.8  The  words  "  before  its  maturity,"  and  "for  value," 
are  not  material  to  the  cause  of  action.  Unless  the  contrary  is 
shown,  the  indorsement  will  be  presumed  to  have  been  made 
before  maturity.^  In  an  action  upon  promissory  notes  assigned 
to  the  plaintiff,  and  for  goods  sold ,  the  plaintiff  may  properly 
allege  in  his  complaint,  on  his  "  information  and  belief," 
that  the  notes  were  executed  by  the  defendant ;  and  he  might 
allege  in  the  same  way  that  the  goods  were  sold  to  the  defendant, 
for  they  might  have  been  sold  by  his  agent.  A  motion  to 
strike  out  the  words  "on  information  and  belief"  should  be 
denied. ^° 

§  1184.  Law  of  Place. — An  assignment  of  a  negotiable 
instrument,  as  between  the  parties  to  that  assignment,  is  sub- 
ject to  the  law  of  the  place  where  the  assignment  is  made ;  and 
if  by  such  law  the  assignment  is  void,   as  against  law  the  as- 

*  Silver  v.  Henderson,  3  McL^nn,  •  Mechanics'  Bank  v.  Straiton,  6 
165;  compare  Earhart  v.  Campbell,      Abb.  Pr.  (N.S.)  11. 

Hempst.  49.  '  Dabney  v.  Reed,  12  Iowa,  315. 

*  Wilson  v.  Codmau's  Ex'rs,  3  "  Minet  v.  Gibson,  1  H.  Blackst. 
Cranch,  193.  569;  Plets  v.  Johnson,  3  Hill,  112. 

«  Savage  v.  Bevier,  12  How.  Pr.  166;  »  Pinkerton  v.  Bailey,  8  Wend.  600; 

Hastings  v.  McKinley,  1  E.  D.  Smith,  Pratt  v.  Adams,  7  Paige  Ch.  615 ;  Nel- 

278.  son  V.   Cowing,  6  Hill,  336;  Case  v. 

*  "Waring  V.  Tales,  10  Johns.  119;  Mechanics'  Banking  Association,  4 
Lowry  V.  Lawrence,  1  Cai.  69.  N.  Y.  166;  and  see  James  v.  Cbal- 

»  Hastings   v.  DoUarhide,    18   CaL      mers'  6  Id.  209. 
89L  "  St  John  v.  Beers,  24  How.  Pr.  377. 


478  FORMS  OP  COMPLAINTS.  §    1185. 

signeecan  exercise  no  right  undor  such  assignment;*  and  what  is 
a  discharge  of  a  contract,  in  a  place  wliere  it  was  made,  will  be  of 
equal  avail  in  every  other  place.  Except  tliat  where  a  contract  is 
to  be  executed  at  a  place  different  from  that  where  it  is  made,  the 
law  of  the  place  of  execution  will  apply  r* 

§  1185.  Note  with  a  Blank  for  Name  of  Payee,  how 
Pleaded. — Where,  in  an  instrument  for  the  payment  of  money, 
the  name  of  the  payee  is  left  blank,  with  tlie  intention  that  such 
instrument  may  be  transferred  by  delivery,  since  any  lawful  holder 
may  fill  the  blank  wilh  his  own  name  as  payee,  he  may  plead  it  in 
an  action  thereon  as  having  been  delivered  to  some  persons  un- 
known, for  a  consideration  from  them  received,  and  as  having 
thereafter  come  lawfully  into  plaintiff 's  possession,  and  that  he  is 
the  owner  thereof.^  There  must  be  two  parties  to  every  prom- 
issory note,  a  maker  and  a  payee ;  if  the  payee  named  is  not  in 
esse  there  is  no  note.* 

§  1186.  Partnership  and  Individual  Liability. — A  com- 
plaint would  seem  to  be  bad  which  shows  a  partnersliip  note  as 
a  cause  of  action  against  an  individual.  If  there  was  no  real 
firm,  it  should  have  been  alleged  that  the  note  was  signed  by  A. 
B.,  in  the  name  of  A.  B.  &  Co.  The  words  "&  Co."  indi. 
cate  a  firm.  The  defendant  may  have  been  a  member  of  that 
firm,  and  yet  never  have  made  the  note,  nor  have  had  any  such 
knowledge  of  its  existence.  It  mny  have  been  the  objection  is 
not  strictly  for  defect  of  parties,  but  tliat  the  complaint  does 
not,  on  its  face,  show  an  individual  liability  on  the  part  of 
"A.  B."5 

§1187.  Allegation  of  Plaintiff's  Title.— In  an  allegation 
on  a  note  payable  to  a  third  person,  the  riglitof  plaintiff  should 
be  alleged.^  And  if  the  answer  does  not  deny  the  allegation, 
defendant  can  not  prove  that  payee  had  no  capacity  to  transfer.'' 
Thus,  in  an  action  against  one  A.  B.,  as  the  maker,  and  others 
as  indorsers  of  a  promissory  note,  the  complaint  set  forth  a 
copy  of  the  note  signed  A.  B.  &  Co.,  upon  which  it  alleged  the 
defendants  were  indebted,  etc.  The  word  "  signed "  was  pre- 
fixed to  the  name  of  the  makers,  and  the  word  "indorsed"  was 
prefixed  to  the  name  of  the  indorsers  in   the  copy ;   but  there 

»  5  East,  123 ;   12  Johns.  142 ;  Pow-  '«  Wnyman  v.Torreygon,  4  Nev.  124. 

ers  V.  Lynch,  8  Mh.ss.  77;   McGliiiiick  'Price  v.   McClave,  6  Duer,  544, 

V.  Cummins,  3  McLenn,  158;  Dundas  affirming  S.  C,  5  Id.  670. 

V.  B'lwler,  Id.  397.  *  .Vfontngue  v.  Reineger,   11  Iowa, 

'  Van  Reimsdyk  v.  Kane,  1  Gall.  60H;  Bennett  v.  Croweli,  7  Minn.  385 

871.  ^  Kobbias    v.  Biebardiion,  2  boivf. 

«  Hubbard  v.  N.  Y.  &  Harlem  R.  E.  248, 
Co.,  14  Abb.  Pr.  27& 


§1189.  PROMISSORY  NOTES,  ETC.  479 

was  no  other  allegation  that  the  defendants  made  or  indorsed 
the  note,  exwpt  that  it  was  alleged  tliat  the  note  was  "  wri'ten," 
and  that  it  was  passed  to  the  plaintiff;  it  was  hold  on  demurrer, 
that  the  making  and  indorsement  should  be  deemed  surtifiently 
alleged.^  An  allegation  that  a  corporation  indorsed  and  trans- 
ferred and  delivered  to  the  plaintiffs  the  note  sued  on,  suffi- 
ciently implies  that  the  tmnsfer  was  made  pursuant  to  a 
resolution  of  the  board  of  directors,  if  such  resoluiion  is  nec- 
essary. So  an  allegation  that  after  the  transfer  the  company 
became  insolvent  and  was  dissolved,  is  an  indirect  statement 
that  it  was  solvent  when  the  transfer  was  made.*  Yet  all  nec- 
essary allegations  should  be  directly  made. 

§  1188  By  the  Treasurer  of  an  Unincorporated  Com- 
pany, on  a  Note  Payable  to  the  Former  Treasurer. 

Form  No.  S21. 
[TlTI.K.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  Mountain  View  Homestead  ARsociation  is  an  as- 
sociation consisting  of persons,  in  the  city  of , 

in  this  state. 

II.  That  at  the  time  hereinafter  mentioned,  one  A.  B.  was 
treasurer  thereof. 

Iir.  That  on  the  day  of ,  18...,  the  defend- 
ant ma  le  his  promissory  note,  of  which  the  following  is  a  copy 
[copy  of  note',  and  tliereunon  delivered  the  same  to  said  A.  B., 
as  the  treasurer  of  the  association,  who  was  duly  authorized  to 
receive  it  on  their  behalf. 

IV.  That  said  note  was  given  for  the  benefit  of  the  associa- 
tion, and  that  it  is  the  property  of  the  memliers  thereof,  and 
owned  by  them  in  common. 

V.  That  this  plaintiff  is  now  the  treasurer  of  said  association, 
and,  as  such,  is  the  lawful  holder  of  said  note  on  and  for  their 
behalf. 

VI.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Dkmavd  or  Jttdqmbnt.]' 

§  1189.     On  a  Note  Payable  on  a  Contingency. 

Fonn  JSo.  S22. 

[TlTLS] 

The  plaintiff  complains,  and  alleges: 

*  Phelps  V.  Fore;uson,  9  Abb.  Pr.  '  HomesteRcl  pesocintions,  un-^pr  *he 
20H;  Lee  V.  Ainslie,  4  Id.  4H3;  Bank  statutes  of  CHlifoniia.  are  incorpo- 
of  Geneva  V.  Gulick,  8  How.  Pr.  51.  rated  pursuant  U>  the  statute.     Hfiice 

•  Nelson  v.  Eaton,  1ft  How.  Pr.  305;  the  above  form  is  not  strictly  applic** 
Taylor  v.  Corhiere,  8  LI.  :^8.5;  but  see  ble  in  this  state. 

MoiitHgue  V.  King,  37  Miss.  111. 


480  FORMS  OP  COMPLAINTS.  §   1190. 

I.  That  on  the  day  of ,  18...,  at , 

the  defendant  made  and  delivered  to  the  plaintiff  his  promissory 

note,  in  writing,  of  which  the  following  is  a  copy: 

$300.  Shasta,  January  1,  1869. 

For  value  received,  I  promise  to  pay  to  A.  B.,  one  year  after 
date,  three  hundred  dollars,  in  case  the  proceeds  of  the  news- 
paper route  I  have  this  day  bought  of  him  shall  exceed  the  sum 
of  one  thousand  dollars.  C.  D. 

II.  That  the  proceeds  of  said  newspaper  route  did,  before  the 
expiration  of  said  year,  exceed  the  sum  of  one  thousand  dol- 
lars. 

III.  That  no  part  of  the  said  note  has  been  paid. 

[D  KM  AND    OF   JUDOMKNT.] 

§  1190.  Condition  Precedent. — Where  a  note  was  made 
pa3'al)le  on  the  contingency  of  the  confirmation  of  a  grant  of 
land,  the  confirmation  was  a  condition  precedent  to  the  payment 
of  the  note.'  Where  the  com[)laint  on  a  promissory  note 
shows  that,  by  agreement  of  the  parties,  its  payment  was  made 
conditional  upon  the  payment  by  the  payee,  of  a  certain  debt  of 
the  payor,  such  payment  is  a  condition  precedent  to  plaintiff* f. 
right  to  recover  on  the  note,  and  must  be  averred  in  the  com|)laint 
to  have  been  made.^ 

§  1191.     On  Note  Payable  in  Chattels. 

Form  No  S2S. 

[TlTLTC.] 

The  plaintiff  complains,  and  alleges: 

I.  That   on   the    day   of   ,   18....,  at , 

the  defendant,  for  value  received  [or,  where  the  consideration 
is  expressed  in  the  note,  for  a  valuable  consideration  therein 
expressed],  made  and  delivered  to  plaintiff  his  promissory  note, 
of  which  the  following  is  a  copy: 

For  value  received,  thirty  days  after  date,  I  promise  to  pay 
A.  B.  five  hundred  dollars,  in  clothing,  at  the  usual  market  rates ; 
the  same  to  be  delivered  within  two  days  after  the  same  is 
selected  or  demanded  by  the  said  A.  B. ;  and  on  default  thereof, 
I  agree  to  pay  the  said  amount  in  money.  C.  D. 

Jfliiuary  I,  1869. 

II.  That  the  plaintiff  thereafter  demanded  of  defendant  the 
said  clothing,  but  defendant  refused  to  deliver  it,  or  any  part 
thereof  to  him  [or  that  the  plaintiff  thereafter  performed  all  the 
conditions  of  the  same  on  his  part]. 

HI.  That  no  part  thereof  has  been  paid. 
[Demand  ok  Judgment.^ 

1  Sand«r8  r.  Wbitesides,  10  Cal.  88.  *  Hogers  v.  Cody,  8  Cal.  824. 


§  1198.  PKOMISSORY  NOTES,  ETC.  481 

§  1 192.  Consideration.  —  Consideration  in  such  complaints 
mity  be  specially  set  oui,^  and  if  so  stated,  must  be  proved  as 
laid.*  It  must  be  averred,  wlien  the  instrument  itself  does  not 
import  a  consideration. ^  In  case  the  consideration  be  subject 
to  transfer  on  demand  of  payment,  the  plaintiff  must  allege  a 
transfer  or  tender  of  transfer.^ 

§  1193.  Demand. — The  demand  should  he  made  at  the  place 
of  business  of  the  maker  of  the  note,  when  the  note  is  payable 
in  chattels.^  But  if  the  day  of  delivery  of  chattels  be  defined  in 
the  note,  as  "on  or  before"  a  day  named,  no  demand  is  nec- 
essary, unless  the  holder  exercises  an  election  as  to  choice  of 
goods.^  Where  the  payee  of  a  note  of  forty  dollars,  payable  on 
demand,  in  "  hemlock  bark,  at  the  going  price,"  in  the  summer 
of  1863,  requested  the  maker  to  have  the  bark  peeled  in  the 
course  of  the  summer  (the  peeling  season),  and  delivered  the 
next  winter,  which  the  maker  agreed  to  do,  but  the  bark  was 
not  delivered :  it  was  held  that  the  demand  was  appropriate  to 
the  note,  and  that  on  defendant's  failure  to  furnish  the  bark, 
the  payee  could  recover  on  the  money  counts.'' 

§  1194.  Elect  of  Iniorsetneat. — The  indorser  of  such  a 
note  has  no  right  to  insist  on  a  previous  demand  on  the  maker, 
but  is  immediately  liable  thereon.* 

§  1195.  Maturity. — It  seems  such  notes  are  generally  due 
oil  d  -inaMd,  auil  a  special  demand  is  necessary.' 

§  1196.  Msasnre  of  Damages. — Upon  such  notes,  the 
mtvisure  of  damages  is  the  sum  of  money  named,  i" 

§  1197.  Noii-payment. — ^The  allegation  of  non-payment  of 
the  money  is  alone  sufficient.^ 

§  1198.  On  Guaranties— Agains  t  Maker  and  Gaai antor 
02  a  Promissory  Note. 

Form  No.  S24. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of  ,  18..,  at  ,  the 

defendant  A.  B.,  and  C.  D.  as  his  security,  by  their  promissory 

*  "Ward  V.  Saokrider,  3  Cai.  263.  403 ;  affirmed,  sub  num.  Stone  v.  Sey- 
«  .Jerome  v.  Whitney,  7  Johns.  321.      mour,  15  Id.  19. 

'  Spear  v.  Downing,* 34  Barb.  522-  '  Lobdell  v.  Hopkins,  5   Cow.  516; 

♦  Considerant  v.  Brisbane,  14  How.  but  see  Barns  v.  Graham,  4  Id.  452; 
Pr.  487.  *"  Pinnev  v.  Gleason,  5  Wend.  893 ; 

*  Vance  V.  Bloomer,  20  Wend.  196 ;  Rockwell  V.  Rockwell,  4  Hill,  164; 
Rice  V.  Churchill,  2  Den.  145  and  see  Gilbert  v.  Danforth,  6  N.  Y. 

•  .Tohnson  v.  Seymour,  19  Ind.  24.  (2  Seld.)  585, 

»Reed  V.  Sturtevant,  40  Vt  521.  "Rockwell    v.  Rockwell,   4    Hill, 

«  Seymour  v.  Van  Slyck,  8  Wend.      164. 
Bbtbb,  Vol.  1—31. 


482  FORMS  OF  COMPLAINTS.  §   1199. 

note  promised  to  pay  to  the  order  of  one  E.  F dol- 
lars [ days  after  date]. 

II.  That  the  said  E.  F.  indorsed  the  same  to  the  plainMff. 

in.  Tliat  on  the  ....day  of ,  18....,  tlie  same   was 

•presented  [or  state  facts  excusing  presentment]  to  the  said  A. 
3.  for  payment,  but  was  not  paid. 

IV.  That  notice  thereof  was  given  to  the  said  C.  D. 

V.  Tiiat  the  defendants  have  not  paid  the  same,  nor  any  part 
'thereof. 

[D  KM  AND   OT  JudGMKNT] 

§  1199.  Certificate  of  Deposit. — Where  the  indorsee,  on 
payment  to  him  of  the  amount,  guarantees  tiie  genuineness  of  the 
signature,  which  is  afterwards  found  to  be  a  forgery,  and  the 
payee  recovers  from  the  makers  tlie  amount  of  certificate  and 
costs,  the  maker  may  recover  from  the  indorsee  and  guarantor 
the  costs  of  the  former  action.^ 

§  1200.  Demand  and  Notice. — "Where  it  is  agreed  "that  if 
the  liolder  should  not  be  able  to  collect  the  note  from  the 
maker  by  due  course  of  law,  then  the  guarantor  would  be  re- 
sponsible without  requiring  notice,"  it  is  a  waiver  of  demand 
on  the  mtvker.^  A  note  indorsed,  "  I  guarantee  the  collection 
of  the  within  note  when  due,"  contemporaneous  with  the  sign- 
ing of  the  note,  constitutes  a  guaranty,  and  the  party  is  enti- 
tled to  the  legal  notice  of  non  payment  before  he  can  be  cliarged  on 
his  coutract.3  A  complaint  is  sufficient  which  treats  the 
maker  and  guarantor  of  a  note  as  joint  makers,  and  contains  no 
allegation  of  demand  and  notice*  "  I  assign  the  within  to  K., 
for  value  received,  and  bind  myself  to  pay  it  promptly  after 
maturity,"  indorsed  upon  a  note,  is  a  guaranty,  and  demand 
and  notice  are  not  necessary  to  fix  the  guarantor's  liability  on 
failure  of  the  makers  to  pay  at  maturity.^     So  in  case  of  a  lease.* 

§  1201.  Discharge  of  Surety. — Mere  extension  of  time  to 
the  maker  is  not  sufficient  to  discharge  a  surety  or  indorser, 
unless  it  will  be  such  as  will  suspend  the  right  of  action  against 
the  maker. ^  The  failure  of  a  holder  of  a  note  to  sue,  when  re- 
quested by  the  surety,  does  not  in  general  operate  to  discharge 
the  liability  of  the  latter.^  If  the  surety  desires  to  protect  him- 
self, he  must  pay  the  note,  and  proceed  against  the   principal.* 

»  Mills  V.  Barney,  22  Gal.  240.  •  Voltz  v.  Harris,  40  III.  155. 

•Baokusv.Shipherd,  11  Wend.  629.         ">  Williams  v.  CovillHud,  10  Cal.  419; 

»  Reeves  v.  Howe,  16  Cal.  162.  Draper  v.  Romeyn,  18  Bsirb.  1(>6. 
*  Lightstoae  v.  Laurencel,  4    Oal.         '  Hartman  v.  Burhnnaine,  9  CaL567. 
277.  »Id. 

8  Baker  v.  Kelly,  41  Miss.  696. 


§  1205.  PROMISSORY  NOTES,  ETa  483 

§  1202.  Guarantor,  Wlio  is. — One  who  puts  his  name  upon 
a  promissory  note,  out  of  the  usual  course  of  regular  negotia- 
ability,  is  a  guarantor,  whether  inscription  is  in  blank  or  accom- 
panied by  the  words,  *'  I  guarantee,"  etc.*  Or  if  the  indorser 
accompanies  his  signature  with  the  words,  "  I  hereby  waive  de- 
mand, notice  of  non-payment,  and  protest,"  he  is  a  guarantor.* 
Where  the  holder  of  a  note,  after  its  maturity,  obtained  from  a 
stranger  a  guaranty  of  its  payment  within  sixty  days  from  date 
of  guaranty,  there  is  no  presumption  of  law  that  the  guarantee 
was  taken  for  the  benefit  of  the  maker,  or  that  it  extended  to 
him  the  time  of  payment.' 

§  1213.  Joint  Liability. — ^Each  one  who  writes  his  name 
upon  a  promissory  note  is  a  party  to  It,  and  each  party  an  orig- 
inal undertaker,*  as  the  note  itself  imports  consideration. 
Where  a  party  signs  a  joint  and  several  note,  he  is  not  entitled 
to  notice  of  non-payment,  though  in  fact  he  signed  as  surety.* 
When  a  promissory  note  is  signed  by  two  persons  in  the 
same  manner,  with  nothing  to  show  that  one  was  surety,  one 
of  such  signers  can  not  set  up  that  he  was  a  surety  only.* 
Where,  in  the  body  of  the  note,  one  party  signs  as  principal, 
and  one  as  surety,  both  are  liable.''^ 

§  1204.  Liability  of  Guarantor. — ^The  liability  of  an  in- 
dorser is  a  guaranty  that  he  will  pay,  if  the  maker  does  not, 
upon  presentment,  if  he  receives  notice.  And  the  liability  of  a 
guarantor  is  the  same,  and  he  is  entitled  to  all  his  rights  stricti 
iuris.^  Where  the  defendant  signed  a  negotiable  note,  as  surety, 
and  delivered  it  to  his  principal,  on  the  condition  that  it  should 
not  be  delivered  to  the  payee,  or  negotiated,  until  another 
party  should  have  signed  the  same  as  co-surety,  and  it  was  de- 
livered without  such  other  signature,  but  the  payee  did  not 
know  of  such  condition,  and  there  was  nothing  on  the  face  of 
the  note  to  put  him  on  inquiry,  it  was  held  that  defendant  was 
liable.9 

§  1205.  Nature  of  Contract. — A  guarantee  is  an  independ- 
ent contract,   which  does  not  suspend    any  right  of  action  of 

»  1  Rig^s  V.  Waldo,  ZCal.  4ft5 ;  Chit.  *  RiRei  v.  Waldo,  2  Cal.  485. 

on  Con t.  397;  8  Kent's  Com.  121.  *  HHrtman   v.   BurliiigHme,  9  Cal, 

*  Ford  V.  Hendricks,   84  Cal.  678;  557;  Dane  v.   Cordman,  24  Id.  167. 

see,  also,  Brady  v.  Reynolds,  18   Id.  •  Kritzer  ▼.  Mills,  9  Cal.  21. 

81;  Storv  on  Prom,  Notes,  sec.  484 ;  'Huniphrevs  v.  Crane,  5   Csl.  173L 

Fell's  Lhw  of  Guar.  &  Sur.  1 ;  Hall  v.  •  Rijigs  v.  Waldo,  2  Cal.  4^5 ;  Poid 

Farmer,  6  Den.  484 ;  Miller  T.  Gaston,  v.  Hendricks,  84  Id.  678;  Pierce    V. 

2  Hill,  191;  Meech  v.    Churchill,  2  Kenir«dv,5  Id.  148. 

"Wend.  680.  •  Merriam  v.  Rofkwood.  47  N.  H. 

»  Williauu    V.  Oovillaud,  10   C»L  81 ;  see  Hoboken  City  Bauk  v.  Phelpa, 

419.  84  CuQU.  92. 


484  FOKMS  OF  COMPLAINTS.  §    1206. 

the  liolrler  of  the  note  ag^ainst  its  maker.*  An  indorsement  or 
a  gnaiunty  of  a  note,  as  an  aojreeinent  of  itself,  a  new  contract 
undertaken  for  anotlier.^  The  contract  of  indorsement  is 
primarily  that  of  transfer;  the  contract  of  guaranty  is  that  of 
secuiity.^ 

§  1206.  Notice  of  Protest. — In  California,  prior  to  the 
adoption  of  a  civil  code,  a  notice  of  protest  was  as  essential  to 
charge  a  guarantor  as  an  indorser,^  as  the  liability  of  a  guar- 
antor was  the  same  as  that  of  the  indorser,  and  he  was  entitled 
to  all  his  rights  stricti  juris.^  Subsequent  to  the  adoption  of 
the  civil  code,  a  guarantor  is  not  entitled  to  demand  of  notice.* 
"I  hereby  waive  demand,  notice  of  non-payment  and  protest, 
Qt  R.,  "  indorsed  on  the  note  of  a  third  party  before  it  is  deliv- 
ered by  the  maker,  is  a  guaranty,  and  not  within  the  statute  of 
frauds.' 

§  1207.  Primary  Liability. — One  who  signs  a  note  to  pay 
absolutely  at  a  certain  time  is  making  his  own  contract,  although 
he  puts  "  surety"  with  his  name.*  When  in  consideration  of  a 
conveyance,  a  party  agrees  to  pay  an  outstanding  note  of  his 
vendor,  and  writes  his  name  on  the  back  of  the  note  as  a  mem- 
orandum of  said  agreement,  he  is  primarily  liable  for  the  note.* 

§  1208.  Surety  — Security.— The  word  "surety"  does  not 
in  any  way  control  the  words  of  the  note,  as  between  the  payor 
and  payee.i'^  "Where  three  parties  purchased  property  together, 
one  taking  an  undivided  half,  and  each  of  the  others  taking 
an  undivided  fourth,  and  for  the  purchase  money  executed  their 
joint  note,  the  purchaser  of  the  half  interest  was  a  principal 
and  co-surety  with  the  others  for  their  interests.^  Where  a 
promissory  note  was  made  jointly  by  A.  and  B.  and  delivered 
to  C,  the  consideration  being  delivered  to  A.  alone,  and  as  be- 
tween A.  and  B.,  the  latter  signed  as  surety  for  A.,  who  had  de- 
posited collateral  security  with  C,  of  which  transaction  as  a 
whole  C.  had  notice  when  the  note  was  executed,  as  between 
the  makers  and  the  payee,  A.  and  B.  were  principals,  and  liable 
as  such  to  C.*^ 

§  1209.  Trustee. — Where  a  party  signs  a  promissory  note, 
with  the  addition  to  his  name  of  the  word  "  trustee,"  he  is  per- 

»  Williams    v.  Covillaud,    10  OaL  »  Ford  v.  Hendricks,  84  Cal.  673. 

419.  "  Aud  V.  Mrtgruder,  10  Cal.  282. 

«  Aud  V.  Magruder,  10  Cal.  282.  »  Palmer  v.  Tripp's  Adm'r,  8  Cal. 

«  Brndy  v.  Reynolds,  13  Cal.  31.  95. 

•  Rie:g3  V.  Waldo,  2  Cal.  485.  m  Aud  v.  Magruder,  10  Cal.  282. 

•  Geiger  v.  Clark,  13  Cal.  580;  "  Chipman  v.  Morrill,  20  Cal.  180. 
Crooks  V.  Tully.  50  Id.  254.  »  Damon  v.  Pardow,  84  Cal.  278. 

•  Civil  Code,  sec.  2807. 


§  1211  PROMISSORY  NOTES,  ETa  485 

sonally  liable.*  A  note  stating  that  "we  the  undersigned, 
trustees  of,  etc.,  on  behalf  of  the  whole  board  of  trustees  of  said 
association,  promise  to  pay,"  etc.,  and  signed  without  qualifica- 
tion by  two  persons  having  authority,  is  a  note  of  the  associa- 
tion.' 

§  1210.  What  Contract  Imports. — ^The  difference  between 
a  maker  and  indorser  or  guarantee,  is  that  the  contract  of  the 
first  imports  an  unconditional  obligation,  that  of  the  last  a  con- 
ditional obligation.3 

§  1211.  When  Action  Lies. — ^Where  a  guaranty  is  given  in 
consideration  of  an  extension  of  time  to  tiie  maker,  the  liolder 
of  the  note  must  exliaust  his  remedy  on  the  original  demand, 
and  can  then  compel  the  guarantor  to  make  good  the  defi- 
ciency.* A  creditor  having  legally  fixed  the  liability  of  the 
guarantor,  is  not  bound  to  sue  the  d  btor  in  order  to  hold  the 
guarantor.  The  guarantor  should  pay  the  debt,  and  then  sue 
the  principal,  or  file  a  bill  to  compel  the  creditor  to  sue.* 

»  Conner  V.  Clark,  12  Cal.  168.  *  Donnhne  v.  Gift,  7  Cal.  24*?;  but 

«  Ha>kell  V.  Cornish,  13  t'al.  45.  see  al<o,  Gross  v.  PHrrott.  16  Id.  148. 

•  A.ud  V.  Mn^ruder,  10  Oal.  282.  »  Wliiting  v.  Olark,  17  Cal.  407. 


SUBDIYISTON"  FOURTII. 

FOR  DAMAGES  ON  BREA.OH  OF  CONTRACT. 


CHAPTER  I. 

BUILDER'S  CONTRACTS. 


§  1212.  By  Contractor,  on  Special  Contract^  Modified, 
with  a  Claim  for  Extra  Work. 

Furm  No.  825, 

[TifLK.] 

The  plaintiff  complains,  and  alleges: 
First. — For  a  first  cause  of  action: 

I.  That  on  the  day  of  ....,  18...,  at ....,  the  defendant 

under  his  hand  and    seal  made  a  contract  in  writing  with  the 
plaintiff,  of  which  the  following  is  a  copy  [copy  contract] . 

II.  That  he  has  duly  performed  all  the  conditions  thereof  on 
his  pai-t,  except  that,  at  the  request  of  the  defendant,  he  finished 
the  building  with  hard  finish  instead  of  cloth  and  paper,  for  which 
the  defendant  promised  to  pay  a  reasonable  sum  in  addition  to 
the  price  named  in  the  contract.  That  by  the  consent  of  the  de- 
fendant the  time  for  completing  said  work  was  extended  for  one 

month  beyond  the  time  fixed  for  the  contract,  to  wit,  to  the 

day  of »  18--. 

III.  That  the  plaintiff  on  his  part  duly  performed  all  the  con- 
ditions of  said  contract  as  modified. 

IV.  That  the  sum  of dollars  is  a  reasonable  payment 

to  be  ma  le  in  addition  to  the  price  named  in  said  contract  for 
fini-^hing  the  building  with  hard  finish  instead  of  cloth  and  paper. 

V.  That  on  the day  of ,  18...,  at ,  the 

plaintiff  demaniAed  of  the  defendant    payment  of  the    sum  of 
dollars,  the  amount  due  on  said  contract  as  modified. 

VI.  Tliat  he  has  not  paid  the  same  nor  any  part  thereof. 
Second. — For  a  second  cause  of  action: 

I.  That    between  the day  of  18...,  and  the 

day  of »  18..,  at ,  the  plaintiff  rendered 

486 


§   1215.  BUILDERS'  CONTRACTS.  40^ 

farther  services  and  furnished  materials  to  the  defendant,  at  his 
request,  in  [here  state  extra  work  and  material],  for  which  the 
defendant  promised  to  pay. 

II.  That  the  same  are  reasonably  worth  dollars. 

III.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  op  Judgment.] 

§  1213.  Essential  Averments. — Under  the  rules  of  pleading 
established  by  the  code,  the  party  to  a  written  contract  for 
the  erection  of  the  building,  who  has  performed  his  part  of  it  by 
the  erection  of  the  same,  can  not  bring  an  action  against  the 
other  party  who  has  failed  to  fulfill,  for  work  and  labor  done 
and  performed ;  but  the  complaint  must  aver  the  execution  of 
the  contract,  its  terms,  the  performance  of  the  same  on  the  part 
of  the  plaintiff,  and  the  non-performance  by  the  other  party, 
and  the  damages  thereby  sustained. ^  The  contract  should  be 
set  forth  in  the  complaint,  together  with  the  necessary  allega- 
tions of  deviations,  performance,  etc.,  which  the  plaintiff  must 
prove,  in^ead  of  the  general  allegation  that  the  defendant  is 
indebted  for  work  and  labor,  etc.^  The  plaintiff  may  plead  as 
follows:  1.  He  may  set  forth  the  contract  according  to  its  legal 
effect,  as  modified,  and  then  allege  that  he  has  duly  "  performed 
all  the  considerations  thereof  on  his  part;  "  or,  2.  He  may  set 
forth  the  contract  in  hcec  verba,  and  then  state  that  he  has  duly 
performed,  etc.,  all  the  conditions  thereof  on  his  part,  except 
that  in  certain  points  it  was  subsequently  modified,  and  that  in 
those  points  he  fulfilled  it  according  to  the  modifications.^ 

§  1214.  Abanionm3nt  of  Contract.  If  the  contract  for 
the  erection  and  completion  of  a  building  is  entire,  and  the  con- 
tractor abanlons  the  work  before  it  is  completed,  he  loses 
the  right  which  he  would  have  had  to  the  full  compensation 
agreed  on.* 

§  1215.  Acceptance  by  Architect. — Where  a  contract  for 
alterations  and  repairs  to  a  building  was  to  be  performed  in  a 
certain  manner,  particularly  specified,  "  subject  t  acceptance 
or  rejection  by  E.  W.,  architect,"  and  payment  only  to  be  made 
when  the  work  was  completely  done  and  accepted,  it  was  held 
that  the  provision  for  acceptance  was  only  an  additional  safe- 
guard against  defects  not  discerail)le  by  an  unskilled  person, 
and  the  architect  could  not,  by  accepting  a  different  class  of 
work  from  that  provided  for,  or   inferior  materials,    bind   the 

1  O'Connor  V.  Dingley,  28  Cat.  11. 

«  LI. 

» -^mith  V.  B-own,  17  BHrb.  431 ;  see,  also,  Hatch  v.  Peet,  23  Id.  575. 

*  Blylhe  v.  Toultney,  31  Cal.  233. 


488  FORMS  OF  COMPLAINTS.  §   1216. 

owner  of  the  building  to  pay  for  them.^  The  architect's  ap- 
proval or  disapproval  must  be  based  upon  the  requirements  of  the 
contract.*^ 

§  1216.  Acceptance  of  Work. — Where  the  work  has  been 
accepted  and  approved  by  the  superintendent,  under  a  contract 
for  repairs  of  streets,  it  is  a  full  performance  of  the  contract; 
and  if  the  parties  are  dissatisfied  they  should  have  appealed  to 
the  board  of  supervisors.  This  was  their  only  remedy. ^  That 
the  defendants  demanded  possession,  which  the  plaintiff  de- 
livered up  to  them,  is  not  a  sufficient  averment  of  acceptance 
on  the  part  of  the  plaintiff.*  Where  the  work  was  to  be  done 
to  the  satisfaction  of  the  defendant,  it  is  not  necessary  to  aver 
that  it  was  done  to  his  satisfaction,  if  it  is  shown  to  be  accord- 
ing to  the  contract ;  but  if  the  contract  requires  it  to  be  done  to 
the  satisfaction  of  third  persons,  the  plaintiff  must  aver  that  it 
was  done  to  their  satisfaction.  ^ 

§  1217.  Payment — Terms  of. — When,  by  the  terms  of  the 
contract,  payment  was  to  be  made  upon  a  certificate  of  the 
architect,  "  that  the  work  was  fully  and  completely  finished 
according  to  the  specification,"  the  giving  of  a  certificate  to 
that  effect  must  be  averred  and  proved.^  But  where  payment 
was  to  be  made  upon  a  certificate  of  an  officer,  the  complaint 
should  allege  that  he  had  made  such  certificate.  It  need  not  be 
averred  also  that  the  work  had  been  performed.'  And  on  a  writ- 
ten contract  to  build  certain  bridges  for  a  railroad  company,  to 
be  paid  for,  one-fourth  in  cash,  and  the  rest  in  stock,  no  time 
and  place  of  payment  stated,  the  payment  could  not  be  required 
until  the  terms  of  the  contract  were  com[)lied  with,  or  at  least 
that  payment  on  any  bridge  was  not  due  until  such  bridge  was 
completed.  And  where  no  time  or  place  is  fixed  by  tlie  agree- 
ment, express  or  implied,  a  demand  is  essential  to  base  an 
action  upon.8  But  after  performance  in  such  a  contract,  an 
action  will  lie  without  proof  of  the  demand  of  the  stock.* 

§  1218.  Enlargement  of  Time. — The  time  of  performing 
a  simple  written  contract  may  be  enlarged  by  parol. ^°     But  not 

*  GlRcius  V.  Black,  50  N.  Y.  145.  »  Butler  v.  Tucker,  24  Wend.  447. 
«D.>yle  V.   Halpin,  33  N.   Y.  Sup.        "Smith      v.    Brii,'gs    3     Den.    73; 

(1  J.  &  Sp.)  352.     For  cases  depend-  Wyckoff  v.  Meyers,  44  N.  Y.  148. 

ing  on  special    facts,   see    KiUip  v.  '  Towsley  v.  Olds,  6  Clark  (Iowa), 

M'etzon.   60     N.  Y.    668;     Shute    v.  626. 

Hamilton,    3    Dalv,   462;    see,  also,  ^  goody  v.  Rutland  &  Burlington  R, 

Blethen  v.  Blake,  44  Cal,  1 17.  R.  Co.,  3  Blatchf.  25. 

8  Kmerv  V.    Bradford.   29    Cal.  75;  •  Hallihan  v.  Corporation  of  Wash- 
Taylor  V."  Palmer,  31   Cal.  248;  Beau-  ington,  4  Cranch  C.  Ct.  304. 
dry  V.  Valdez,  32  Cal.  278.  "12    Barb.  306;  Meehan  v.  Will- 

*  Smith  V.  Brown,  17  Barb.  431.  lams,  36  How.  Pr.  73. 


§  1221.  BUILDERS'  CONTRACTS.  489 

unless  the  parol  contract  be  upon  sufficient  consideration.*  And 
the  extension  is  not  an  alteration  necessarily  material  to  the 
cause  of  action.^  But  after  a  contract  is  modified,  the  declara- 
tion must  not  be  upon  the  original  contract  alone. ^ 

§  1219.  Performance — Averment  of. — Building  contracts 
need  not  be  literally  complied  with  in  every  punctilio,  as  a  con- 
dition to  recovery.'*  Thus  where  there  was  a  special  contract 
to  build  a  house  by  a  certain  day,  which  was  not  fulfilled, 
owing  to  various  circumstances,  and  the  contractor  brought  a 
suit  setting  forth  the  special  contract  and  averring  performance, 
it  was  erroneous  in  the  court  to  instruct  the  jury  to  find  for  the 
plaintiff,  as  the  work  was  not  finished  by  the  appointed  day, 
though  it  was  completed  after  the  appointed  time  with  the 
knowledge  and  approbation  of  the  defendant. ^  But  in  a  con- 
tract for  the  erection  of  a  building  upon  the  land  of  another,  if 
performance  is  to  precede  payment,  and  is  the  condition  thereof, 
the  builder,  having  substantially  failed  to  perform  according  to 
the  specification  of  the  contract  on  his  part,  can  recover  noth- 
ing for  his  labor  and  materials,  notwithstanding  the  owner  has 
chosen  to  occupy  and  enjoy  the  erection.^  The  pleader  may 
aver  performance  which  he  wishes  to  aver,  and  state  excuses 
and  causes  for  non-performance  of  other  conditions."''  If  there 
has  been  any  variation  from  the  terms  of  the  written  contract 
in  the  progress  of  the  work,  by  consent  of  the  parties,  that  fact 
should  also  be  averred,  and  the  performance  of  the  contract  eb 
varied.  8 

§  1220.  Extra  Work. — It  is  held  that  the  contractor  can 
not  recover  for  extra  work,  merely  upon  the  proof  that  such 
work  was  done  at  defendant's  request,  the  presumption  being 
that  provision  was  made  for  extra  work  under  the  contract.^ 
The  employer  is  bound  to  pay  the  contractor  for  extra  work  and 
materials,  in  a  deviation  from  the  contract,  upon  an  oral  order. i® 

§  1221.  Public  Works. — Contracts  for  the  construction  of 
public  works  are  not  necessarily  illegal  because  for  an   amount 

1  Tinker  V.  Geraghty,  1  E.  D.  Smith,  Turner,  6  N.  H.  487 ;  which  were  dis- 

687.  approved  in  the  cases  tirst  cited. 

*  Crane  v.Maynard,  12  Wend.  40'^.         'For  the  rules  on   tlie    suhject  of 

*  Freemftn  V.  Adams.  9   Johns.  Il6.  averment  of  performance   of    condi- 

*  Smith  V.  Gugertv,  4  liarb.  614.  tions  precedent  see  a«^e,  "Complniiits 
'  Dermolt  V.  Jones,  23  How.  U.  S.  in  General;"  also,   1  Chit.    PI.  283; 

220.  Hatch  v,   Peet,  23  Barb.  575. 

6  Ellis  V.  Hanlen,  8  Taunt  52;  «  O'Connor  v.  Dinsrl^v,  2ti  Gd.  11. 
Pike  V.  Butler,  4  Corast  3«0;  Smith  »  CoUver  v.  Collins,  17  Ahb.  Pr.4t39. 
V.  Brady,  17  N.  Y.  173.     Compure,  to         i°  Smith   v.  Gugerty,  4  Biirl).  614. 

the   contrary,    Hayward  v.    Leonard,  Foracase  where  the  contract  provided 

7  Pick.  l**l  ;  Smit  v.    Congn  p^iiiMnal  for  the  contingency  of  extra  work,  see 

Meeting  HoUse,  8  Id.  178;  Biitiou  v.  Alger  v.  Vauderpowl,  o4  N.  Y.  l(il. 


490  FORMS  OF  COMPLAINTS.  §   1222. 

exceeding  the  sums  appropriated  by  law,^  So  a  contract  for  the 
performance  of  certain  public  work,  n()t  authorized  by  law,  pro- 
vided the  legislature  shall  sanction  it,  is  not  void  as  against 
public  policy. 2  When  a  contract  for  the  construction  of  a  public 
work  is  silent  as  to  time  and  manner  of  measurement,  the  law 
implies  that  the  work  is  to  be  done  of  the  ordinary  kind,  and 
the  measurement  made  in  the  ordinary  way. 

§  1222.  Separate  Counts. — Where  the  complaint  contained 
three  counts,  the  first  on  a  special  contract  for  the  erection  of  a 
warehouse,  the  second  for  extra  work  on  the  building,  and  the 
third  for  work  and  labor  done,  and  materials  furnished  in  its 
erection,  and  the  answer  denied  the  allegations  of  the  first  two 
counts,  but  failed  to  deny  the  allegations  of  the  third,  it  was  held 
that  the  third  count  should  be  considered  as  denied. ^ 

§  1223.  Performance  by  Substitute. — An  agreement  to 
find  work  and  materials  for  building  a  house  entitles  the  party  to 
recover  upon  the  completion  of  the  work,  although  he  procured 
it  to  be  done  by  other  parties.*  If  a  new  contract  was  substituted, 
the  original  should  not  be  pleaded.^ 

§  1224.  Terms  of  Contract. — Upon  a  compliance  on  the 
part  of  a  subcontractor,  laborer,  or  material  man,  with  the  terms 
of  the  statute,  their  right,  which  through  the  original  contractor 
inures  primarily  to  the  benefit  of  such  persons,  must  be  deter- 
mined by  the  terras  of  the  original  contract,  and  they  are  pre- 
sumed to  have  notice  of  the  existence  and  terms  of  such  contract  ;^ 
and  in  the  absence  of  fraud  or  misrepresentations  by  tlie  owner, 
this  presumption  is  conclusive  against  them.'''  If,  by  the  terms  of 
the  contract,  the  party  who  has  faik'd  to  fulfill  was  to  execute  his 
note  for  the  money  due,  payable  at  a  future  day,  his  failure  to  do 
so  should  be  averred,  for  the  ground  of  action  against  him  is  his 
failure  to  execute  the  note.^ 

§  1225.  AgainstaBuilder,  for  Defective  Workmanship. 

Form  No.  3£6. 
[Title.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the day  of ,  18..,  at ,  the 

plaintiff  and  defendant  entered  into  an  agreement,  of  which  a  copy 
is  hereto  annexed  [or  state  the  terms  of  the  contract] . 

*  Cook  V.  Hamilton  Co.,  6  McLean,  *  Blakeney  v.  Evans.  2  CrRnoh,  185. 
112.  »  Cli.'shroiiijh  v.  N.  Y.  &  Erie  B.  R. 

*  Id.     Sps  also,  to  similar  effpct,  Co-     Co  ,  2<)  Burli.  9. 

lumbiis  K.  R.  Co.  V.  IiidianHpolia  and  *  Sluivcr  v.  Mnrdock,  fi(\  Cnl.    203. 

Bcllefontaiiie  R.   R.   Co.,  6  McLean,  '  lI'Miley  v.  WaiUwurili,  3<  (^al.  oV). 

450.  •  U'Coimor  V.   Dingley,  20  Lul    Ih 
»  J£ulkman  v.  Basils.  23  Cal.  803. 


§  1227.  BUILDERS'  CONTRACTS.  491 

II.  That  the  plaintiff  duly  performed  all  the  conditions  of 
the  said  agreement  on  his  part. 

Ill  That  defendant  built  [the  brid2:e]  referred  to,  in  a 
bad  and  unworkmanUke  manner  [specifying   wherein  the   work 

was  not  properly  done],  to  the  damage  of  the  plaintiff 

dollars. 

[D  KM  AND   OF  JUDQMBXT  ] 

§  1226.  Against  a  Build3r,  for  not  Compleiing,  with 
Special  Damage  for  Loss  of  Rent. 

Form  No.  S27. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at ,  the 

plaintiff  and  the  defendant  entered  into  an  agreement,  under 
their  hands  and  seals,  of  which  a  copy  is  annexed  as  a  part  of 
this  complaint,  marked  "  Exhibit  A." 

II.  That  the  plaintiff  duly  performed  all  the  conditions  thereof 
on  his  part. 

III.  That  the  defendant  entered  upon  the  performance  of  the 
work  under  said  contract,  but  has  neglected  to  finish  tiie  said 
contract  [state  what  he  has  neglected],  and  that  although  the 
time  for  the  completion  of  the  said  building  expired  before 
commencement  of  this  action,  he  neglects  and  refuses  to  com- 
plete the  same. 

IV.  That  the  plaintiff,  on  the day  of 18.,.,  at 

,  made  an  agreement  vvith  one  A.  B.,  whoreby  he  agreed 

to  let,   and  said   A.    B.    agreed  to  hire,    the  said   biiilling  for 

months,  from  the day  of ,  18...,  to  the 

day  of ,  18..,  at  the  monthly  rent  of 

dollars,  of  which  the  defendant  had  notice. 

V.  That  by  reason  of  the  defendant's  failure  to  oom>lote  the 
contract  aforesaid  on  his  part,  the  plaintiff  has  been  unable  to 
give  said  A.  B.  occupancy  thereof,  and  has  been  thereby  de- 
prived of  the  profits  of  said  lease,  to  his  damage dollars, 

gold  coin. 

[Demand  of  Judgment."] 

[Annex  agreement,  mMrked  "  Exhibit  A."] 

§  1227.  Performance— Plans  and  Specificatioug — Vari- 
ation.— The  unqualified  refusal  of  a  contractor  to  perform  a  part 
of  the  work  on  a  building  in  actual  progress  of  erecticm,  is  in 
itself  a  breach  of  the  contract.^  If  a  contract  to  do  work  pro- 
vides that  the  work  shall  be  done  according  to  certain  specifica- 
tions, which  are  annexed  to  it,  the  specifications  are  a  part  of 

^  Thompson  t.  Laiiig,  8  Bosw.  482. 


492  FORMS  OF  COMPLAINTS.  §   1228. 

the  contract.^  If  the  contract  is  not  annexed  and  made  part  of 
the  complaint,  the  allegation  should  embody  sufficient  of  the 
plan  and  specifications  to  show,  in  connection  witli  the  aver- 
ment of  the  breach,  in  what  particular  the  contract  w  is  broken.^ 
An  averment  may  be  made  sufficiently  certain  by  introducing 
and  referring  to  diagrams  showing  form  and  dimensions,  etc.^ 
Where  the  contract  gives  tlie  employer  the  right  to  change  the 
form  and  the  material,  the  builder  has  not  the  right  upon  such 
a  change  to  stop  the  work  in  an  unfinished  state,  and  thus  arbi- 
trarily annul  tlie  contract.*  A  written  contract  to  furmsh  arti- 
cles for  a  building,  mentioning  no  time  for  performance,  is  to 
be  performed  in  a  reasonable  time,  and  oral  evidence  that  a 
certain  time  was  agreed  on  by  the  parties  is  not  admissible. ^ 

§  1228.  Breach  of  Contract— Damages — Excusable 
Delay. — A  covenant  in  a  contract  to  erect  and  complete  a 
building  by  a  certain  day,  under  a  penalty  of  thirty  dollars  for 
every  day  same  should  remain  unfinished,  is  not  an  »bso- 
lute  covenant  to  finish  it  on  that  day.^  Where  the  plaintiff 
fails  to  perform  by  the  daj'  fixed,  the  defendant's  consenting  to 
his  going  on  and  completing  the  contract  afterwaids  is  no 
waiver  of  the  right  to  recoup  his  damages  for  the  delay.'  One 
who  has  agreed  to  build  a  house  on  the  land  of  another,  and 
has  substantially  performed  his  contract,  but  has  not  com- 
pletely finished  the  house,  nor  delivered  it,  when  it  is  destroyed 
by  fire,  is  liable  in  an  action  for  money  advanced  upon  the  con- 
tract, and  damages  for  its  non-performance.^  If  the  delay  on 
the  part  of  the  contractor  to  perform  the  work  is  causid  by 
want  of  readiness  in  the  work  performed  by  another  contractor 
under  an  independent  contract,  he  can  not  be  held  liable  for  a 
breach  of  his  contract,  nor  forfeit  his  right  to  recover  for  what 
he  has  done.^  Where  a  building  contract  contained  a  provision 
that  the  owner,  on  fifteen  days'  notice,  might  employ  another 
to  finish  it,  and  pay  therefor  out  of  any  money  due  the  con- 
tractor, it  was  held  that  by  failing  to  complete,  the  contractor 
forfeited  only  so  much  as  the  owner  was  obliged  to  pay  to 
finish  the  building.^" 

1  Tiiylor  V.  PHlmer,  81  Gal.  241.  Hftfford  v.  Alger,  1  Taunt.  218;   Mer- 

2  Cooiiey  v.  VVinants,  19  Wend.  504.     rit  v.  Johnson,  7  Johns.  47-^;   Adums 
8  Booker  V.  Hny,  17  lad.  622  Michols,  19    Pick.  275;   Hiirmony  v. 

*  (Jl.trk  V.  Mayor  of  New  York,  4  Bingham,  12  N.  Y.  99;  S<.h<.ol  District 
N.  Y.  808.  V  Douchy,  25  0  -nn.  680;  3  Dutch.  614; 

6  Striin-;e  v.  Wilson,  17  Mich.  342.  Tompkins  v.  Dudley,  26  N.  Y.  272. 

«  FMmliam  v.  liuss,  2  Hall,  167.  »  Stewart  v.  Ketellas,  9  Bosw.   261. 

1  BMrbcr  ▼.  Ro>ie,  6  Hill,  76.  ^  j^^yje^  y.  Gough,  4  E.   D.  Smith, 

•  Andrews  V.  Durant,  11  N.  Y.   85;  724. 


1231.  CHARTER  PARTIES.  493 


CHAPTER    11. 

ON  CHARTER  PARTIES. 

§  1229.     Owner  against  Freighter  for  not  Loading. 

Form  No.  S28. 

[TiTLK.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the day   of ,  18...,  at ,   the 

plaintiff  and  defendant  entered  into  an  agreement,  a  copy  of 
which  is  hereto  annexed. 

[Or,  I.  That  on  the day  of ,  18....,  at , 

the  plaintiff  and  defendant  agreed  by  charter  party  that  the  de- 
fendant should  deliver  to  the  plaintiff's  ship  "  Flying  Scud,"  at 

,  on  the   day  of ,  18....,  four  hundred  and 

fifty  tons  of  wheat,  which  she  should  carry  to  London,  England, 
and  there  deliver  on  payment  of  four  thousand  dollars  freight; 
and  that  the  defendant  should  have  ten  days  for  loading,  five  days 
for  discharge,  and  three  days  for  demurrage,  if  required,  at  fifty 
dollars  per  day.] 

II.  That  at  the  time  fixed  by  the  said  agreement  the  plaintiff 
was  ready  and  willing  and  offered  to  receive  the  said  merchan- 
dise [or  the  merchandise  mentioned  in  the  said  agreement]  from 
the  defendant. 

in.  That  the  period  allowed  for  loading  and  demurrage  has 
elapsed,  but  the  defendant  has  not  delivered  the  said  merchandise 
to  the  said  vessel. 

Wherefore  the  plaintiff  demands  judgment  for dol- 
lars for  demurrage,  and dollars  additional  for  dam- 
ages. 

§  1230.  Charter  Party  Defined  — A  charter  party  is  a  con- 
tract by  which  the  owner  lets  his  vessel  to  another  for  freight. ^ 
Any  contract  founded  on  an  illegal  voyage  partakes  of  the  char- 
acter of  that  vo3'age,  and  stands  or  falls  with  it.^ 

§  1231.  Measure  of  Damages. — ^The  measure  of  damages 
against  a  charterer  who  refuses  to  furnish  a  cargo  according  to 
his  contract  is  the  stipulated  price,  deducting  the  net  earnings 
of  the  vessel  during  the  time  she  has  been  occupied  on  the  voy- 
age, at  an  average  passage,  and  including  the  lay  days.'  If  the 
freighter  only  partially  fulfills  his   contract,  the  owner  may  re- 

1  Springy.  Gray's  Ex'rs,  6  Pet  151,  164. 

•  Culquhoun  v.  N.  Y.  Fireman's  Ins.  Co.,  15  Johns.  352. 

•  Ashburner  v.  Balchea,  7  N.  Y.  262. 


494  FORMS  OP  COMPLAINTS.  §    1232. 

cover  for  the  dead  freight  his  contract  price ;  but  the  owner  is 
bound  to  tuke  other  freight   if   offered,  though  at  a  less  price, 
and  can  recover  only  the  difference  in  price.' 
§  1232.  Demurrage,  Allegation  for. 

Form  No.  329 

That  the  defendant  detained  the  ship days  beyond  the 

periods  so  agreed  on  for  loading,  discharging,  demurrage,  as 
aforesaid,  whereby  the  plaintiff,  during  all  that  time,  was  de- 
prived of  the  use  of  the  ship,    and  incurred  dollars   ex- 

jjense  in  keeping  the  same  and  maintaining  the  crew  thereof. 

§  1233.  Demurraga,  Damages  for. — Although  demurrage, 
properly  so  called,  is  only  payable  when  it  has  been  stipulated, 
yet  if  a  vessel  is  improperly  detfiined,  the  owner  may  have  a 
special  action  for  the  damage. ^  It  is  the  c'uty  of  the  charterers 
to  restore  the  ship  at  the  end  of  the  period  allowed  for  the  de- 
murrage, but  they  are  not  responsible  for  an  unreasonable  delay 
by  the  master. ^  And  one  who  purchases  goods  arriving  in  bond, 
is  not  liable  for  demurrage  of  the  vessel  for  the  detention  occur- 
ring before  the  seller  obtains  legal  permit  for  the  delivery.*  No 
demurrage  can  be  recovered  by  an  owner  for  a  detention  occa- 
sioned either  by  the  misconduct  of  the  master,  for  which  the 
owner  alone  was  answerable,  or  to  avoid  danger,  and  not  by  any 
misconduct  or  any  breach  of  covenant  by  the  charterer. 5 

§  1234.  Distinction  betwesn  Contracts  of  Hiring  and 
Affreightment. — An  agreement  to  hire  a  vessel  in  any  leg  I 
trade  for  a  specified  period,  with  covenants  for  her  seaworthi- 
ness, and  that  the  hirer  should  pay  by  the  time,  and  not  by  the 
carrying  of  goods  on  the  voynge,  is  a  hiring  of  the  vessel,  and 
not  a  contract  of  freight.^ 

•  §  1235.  Duties  of  Maste* — Where  a  charter  party  allows 
a.charterera  number  of  "lay  days,"  and  neither  the  consignees 
nor  other  persons  receive  the  cargo  or  pay  the  freight  after 
arrival  at  the  port  of  destination,  the  master,  acting  as  sole  agent 
on  behalf  of  both  charterer  and  owner,  is  bound  to  sell  the 
cargo  and  pay  the  freight,  on  expiration  of  the  "lay  days," 
but  he  is  not  bound  to  sell  before  the  expiration  of  the  "lay 
days 


»'7 


1  Abb.  on  Shipping,  428 ;  Heckscher  *  Hooe  v.  Groverman,  1  Oranch,  21  J. 

V.  McCrea,  24  Wend.  304.  «  Winter  v.  yimonion,  3  CrHncii  C. 

»  Abb.  on  Shipping.  304 ;Clendaniel  Ct.  104;  see  also  Donnhoe  v.  Ketti-H, 

-V.  Tiickpnimn,  17  Barb.  184.  1  Cliff.   135;  Huslen  v.  Richards,  4i 

8  Kobbins  v.  Codtnan,  4  E.  D.  Smith,  Me.  182. 

815.  ^  Kobbins  v.  Oodman,  4  E.  D.  Smith, 

'Gillespie    v.  Durand,    8    E.    D.  815. 
Suiiib.  6«il. 


§   1238.  CHAPTER  PARTIES.  495 

§  1238,  Interpretation  of  Contract. — In  the  construction 
of  charter  parties,  it  must  be  remembered  that  they  are  often 
informal,  and  must  have  a  hberal  construction,  in  furtherance 
of  the  real  intention  of  the  parties  and  the  usage  of  the  trade.^ 
And  though  tlie  owner  of  a  ship,  of  which  the  charterer  is 
freighter  only,  has  a  lien  upon  the  cargo  for  freight,  and  also 
for  a  sum  agreed  to  be  paid  for  the  use  and  hire  of  the  ship, 
his  lien  may  be  considered  as  waived,  without  express  words  to 
that  effect,  if  there  are  stipulations  in  the  charter  party  incon- 
sistent with  the  exercise  of  the  lien,  or  when  it  can  fairly  be 
inferred  that  the  owner  meant  to  trust  to  the  personal  respopsi- 
bility  of  the  charterer.'^ 

§  1237.  Made  of  Stowage. — Where  no  mode  of  stowage  is 
prescribed  in  the  charter  party,  the  usage  of  trade  will  obtain, 
and  the  owner  will  not  be  liable  for  damages  resulting  there- 
from.3 

§  1238.  Lay  Days.— Under  a  charter  party,  the  lay  days  of 
a  vessel,  by  the  general  rule,  commence  to  run  from  the  time 
the  vessel  enters  the  dock.*  Where  the  delivery,  by  the  terms  of 
the  charter  party,  was  to  be  made  *'  alongside  of  the  plaintiff's 
vessel,  within  reach  of  her  tackles,"  it  was  held,  that  if  the  mas- 
ter was  directed  to  take  the  vessel  to  a  certain  dock,  and  did  so, 
the  lay  days  commenced  to  run  from  the  day  she  was  taken 
there,  and  was  in  readiness  alongside  the  dock  to  receive  her 
ca'go.  A  charter  party  provided  for  "laydays"  as  follows: 
to  load  twenty  days  from  the  twelfth  instant,  the  owner  guaran- 
teeing to  have  the  vessel  r(  a  ly  by  that  time ;  and  by  a  subsequent 
stipulation  the  charter  party  was  to  commence  when  the  vessel 
■was  to  receive  cargo,  and  notice  thereof  should  be  given  to  the 
charterer.  The  readiness  of  the  vessel  at  the  day  named  was  a 
condition  precedent  to  the  charterer's  liability  to  accept  and 
employ  her,  and  the  charter  party  commences  on  notice  that  the 
vessel  is  ready  to  received  the  cargo.*  Where  no  "  lay  days  "  are 
proviiled  in  the  charter  party  or  bill  of  lading,  and  there  is  no 

'  Abb.  on  Shipping  (Story's    ed  )  &  Aid.   62;  Raymond  v.  Tyson,    17 

188;    3    Kent's    Com.    201  et  seq  ;  How.   TT.     S.    5:1     As    to  "the  con- 

Ruirgles  V.  liuclcTier,  1   Paine,   8^8;  1  struction  of  chiirter  parties  in  pecu- 

Suniu  561  ;  Certain  Logetc.  v.  Kii-h-  culiar cases,  ste  Ogilen  v.  Piirsons,  37 

ard>oi<,  2  Id.  589;  Gracie  v.  Palmer,  Hunt's  MerchKiit'-*  Mauj.  (Dec.  1857), 

8  Whi-at.  60>,  B34;  Raymond  v.  Ty-  710;   Belmont  v.  Tvsun,  30  Id.  (Feb. 

«on,  17  How.  U.  S.  53.  1857),  202;  Freeman  v.  A    Cargo  of 

«  Prtiiie,  363;  Chandler  v.  Belden,  Salt,  40  id.  (April,  1859),  457. 

18  .Johns.  167, 162;  Abb. on  Shipping,  'Lamb  v.  Parkman,  Sprague,  848; 

178;  Lucas  V.  IS ackells,  4Bing.  729;  *1   Pars.    Mar.  L.    262;   Rawe   v. 

Cowell   V.   Simpson,    16   Ves.     275;  Smith,  10  Bosw  218. 

Cliase  V.  Westmore.  5   Mau.  «fc  Sel.  *  W«ii««ry.  Muitland,  3  Sandf.  318, 
180 ;  Crawshay  v.  Hamfray,  4  Barn. 


496  FORMS  OP  COMPLAINTS.  §   1239. 

express  stipulation  as  to  the  time  of  unloading,  the  consignee  is 
not  liable  for  delays  occurring  witliont  his  fault.^ 

§  1239.  Liability  of  Charterer. — Where,  by  the  terms  of 
the  charter  party,  the  charterer  was  to  return  the  boats  "in  as 
good  condition  as  they  now  are,  with  the  exception  of  the  ordi- 
nary use  and  wear,"  lie  is  not  liable  as  an  insurer  against  the 
perils  of  the  sea  or  risks  of  navigation. ^ 

§  1240.  Negl'gence,  Liability  for. —If  persons  charter  a 
steamboat  generally,  they  are  owners,  in  respect  to  lial»iliiy  for 
negligence  in  running  her.  If  the  contract  is  one  of  affreightment 
menly,  they  are  not  such  owners. ^ 

§  1241.  Owner  for  Voyaga. — If,  by  the  terras  of  the  charter 
party,  the  charterers  are  to  have  exclusive  possession,  control, 
and  management  of  the  vessel,  appoint  master,  run  the  vessel, 
and  receive  tlie  entire  profits,  they  are  the  owners,  and  nre  alone 
responsible  for  damages  and  contracts.^  And  the  charterers* 
right  of  possession  may  be  lost  by  a  voluntary  surrender  to  the 
owners. 5 

§  1242.  Power  of  Master. — The  master  of  the  vessel  may 
make  a  charter  party,  where  the  owner  has  no  agent  in  a  foreign 
port,  for  the  benefit  of  the  owner,  but  not  to  give  a  creditor  of 
the  owner  a  security  of  the  debt  due  to  him.^ 

§  1243.  Refusal  to  Overload. — Although  the  charter  party 
lets  the  entire  capacity  of  the  vessel,  if  the  goods  put  on  board 
are  heavy  articles,  and  before  the  ship  is  full  sink  her  as  low  as 
is  usual  and  proper  without  extra  danger,  the  owners  or  master 
of  the  vessel  do  not,  by  refusal  to  take  more,  violate  the  charter 
party.' 

§  1244.  Repairs  of  Vessel. — A  breach  of  a  clnuse  in  the 
charter  party,  binding  the  charterer  to  keep  the  vessel  in  re- 
pairs, should  be  alleged  in  the  complaint  in  an  action  by  owners 
of  a  vessel  against  charterer.^ 

'§  1245.  Rescission. — Where  two  persons  chartered  a  vessel 
for  six  months,  and   after  a  part  of   the  time  had  passed,  the 

*  The  Glover,  1  Brown  Adm.  166.         held  not  to  have  had   the  effect  of 
'  Story  on  Bailm.,  sec.  35;  Brown's     transferring  the   ownership  and  pos- 

L»'g.  Mux.   187;  Ames  v.  Belden,  17  session   Irom    the    general     owners: 

Barb.  514.  Clarkson   v.  Kdfs,  4  Cow.  470;  Mac- 

8Sliemian  v.  Fream,  30  Barb.  478.  ta.ner  v.  Honry,  3  E.  D.  Sniiih,  390; 

*  Gracie  v.  Palmer,  8  Wheat.  b,i'Z;  Holmes  v.  I'avenstedl,  5  Sandf.  97. 
Marconiipr  v.  Chesapeake  Ins.  Co.,  8  ^  Bergen    v.    Tamiued,    40    Hunt's 
Cranch,  39;  Abb.  on  S.  (Eng.  ed.)  67,  Merch.  Mag.  708. 

note    1 ;  Id.  288,  289 ;  1   Suain.   5RG,  «  Hurry  v.  Hurry,  2  Wash.  C.  C.  145. 

667  ;  Kleine  v.  Catara,  2  Gall.  75;  Hill  ">  Weston  v.  Minot,  3  Woodb.  &  M. 

V.   The   Golden  Gate,  1  JSewb.  808;  43fi. 

Winter  v.  Hlmonton,  3  Gnmch  C.  Ct.  «  Cos'er    v.  N.  Y.  and  Erie  E.  R. 

104.    A  charter  party  examiued,  and  Co.,  8  Abb.  Pr.  832. 


§  1249.  CHARTER  PARTIES.  497 

owner  agreed  with  one  of  the  charterers,  in  writing,  that  the 
charter  party  was  to  be  deemed  to  have  expired,  it  was  held  a 
valid  rescission  of  the  contract.^ 

§  1246.  Running  Days. — A  provision  in  the  charter  party 
for  running  days  is  in  effect  a  positive  stipulation  by  the 
freighter  tliat  he  will  load  and  unload  within  the  time  men- 
tioned, and  inevitable  accident  does  not  excuse  hira.^ 

§  1247.  Charterer  against  Owner,  for  Deviation  from 
Contract,  and  Abandonment  of  Voyage. 

Form  No.  330. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the  day  of  ,   18...,   at  ,  the 

plaintiff  and  defendant  agreed,  by  charter  party,  that  the  de- 
fendant's  ship,    called     the    ,    then   at    ,    should 

sail  to  ,  or  so   near  there   as  she  could  safely  get,  with 

all   convenient  speed,  and  tliere  load  a  full  cargo  of   .,  or 

other  lawful  merchandise,  from  the  factors  of  the  plaintiff,  and 
carry  the  same  to  ,  and  there  deliver  the  same,  on  pay- 
ment of  freight. 

II.  That  the  plaintiff  duly  performed  all  the  conditions  of  the 
contract  on  his  part. 

III.  That  the  said  ship,  the  ,  did  not,  with  all  con- 
venient speed,  sail  to  ,  or  so  near  thereto  as  she  could 

safely  get;  but  that  the  defen  lant  caused  the  said  ship  to  devi- 
ate from  her  said  voysge,  and  abandon  the  same,  to  the  plain- 
tiff's  damage dollars. 

[Demand  of  Judgment.] 

§  1248.  Assent  of  Charterer. — Whore  a  chartered  vessel 
met  another  vessel  in  distress  in  the  course  of  her  voyage,  and 
one  of  the  charterers,  being  on  board,  consented  that  a  part  of 
the  crew  might  go  on  board  the  distressed  vessel  to  assist  in 
saving  her,  the  assent  of  tlie  charterer  would  not  vary  the  con- 
tract respecting  the  freight. ^ 

§  1249.  Deviation. — On  a  voyage  from  South  America  to 
Boston,  stopping  at  Nevv  York  may  be  such  a  deviation  as 
would  render  the  charterer  liable  for  damage  it  might  occasion. 
Yet  it  is  not  such  a  change  as  will  dissolve  the  charter  party 
and  entitle  the  owner  to  possession  at  New  York,  and  to  retain 
cargo  for  freight,  though  the  charterer  has  become  insolvent.^ 

*  Wheeler  v.  Curtis,  11  Wend.  653.  ^  Mason    v.    Blaireau     2    Cranch, 

« Field  V.  Chase,  Hill  &  D.  Supp.  240. 

50.  *  Lander  v.  Clark,  1  Hall,  394. 
EsTKE,  Vol.  1—32. 


498  FORMS  OF  COMPLAINTS.  §    1250. 

§  1250.  Negative  Allegations. — If  there  are  exceptions 
in  the  charter  party,  allegations  tending  to  negative  the  same 
.axe  not  necessary.^ 

§  1251.    Ship  Owner  Against  Charterer  for  Freight. 

Foi-m  No.  SSL 
[Title.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the day  of  ,  18...,   at  ,  the 

plaintiff  and  defendant  agreed,  by  charter  party,  that  the  plaint- 
iff's  ship,  called ,  should,  with  all  convenient  speed, 

sail  to  ,  and  that  the  defendant  should  there  load  her 

with  a  full  cargo  of ,  or  other  lawful  merchandise,  to 

be  carried  to ,  and  there  delivered,  on  payment  by  the 

defendant  to  the  plaintiff  of  freight,  at dollars  per  ton. 

II.  That  the  said  ship  accordingly  sailed  to  ,  afore- 
said, and  was  there  loaded  by  the  defendant  with  a  full  cargo 
of  lawful  merchandise,  and  the  plaintiff  carried  the  said  cargo 

in  said  ship  to  aforesaid  and  there  delivered  the  same 

to    tlie  defendant,  and   otherwise  performed  all  the  conditions 
of  said  contract  on  his  part. 

III.  That  said  freight  amounted  in  the  whole  to  the  sum  of 
dollars. 

IV.  That  the  defendant  has  not  paid  the  same. 

[Dkmand  of  Judgment.] 

§  1252.    Allegation  against  Assigaee  of  Cargo. 

Form  No.  SS2. 

That  thereafter  the  said  A.  B.  assigned  the  cargo  to  the  de- 
fendant, who  thereupon  became  the  owner  thereof  and  entitled 
to  receive  the  same. 

§  1253.  Allegation  of  a  Charter. — ^The  plaintiffs  alleged 
in  their  complaint  that  their  assignors  having  chartered  a  vessel, 
earned  freight,  which  the  defendants,  the  consignees  of  the  ves- 
sel had  collected  and  refused  to  pay  over.  The  defendants,  in 
their  answer,  denied  that  the  plaintiff's  assignors  had  chartered 
the  vessel  in  any  other  way  tlian  by  a  charter  party,  which  pro- 
vided that  their  right  to  any  share  of  the  freight  should  be  con- 
tingent on  the  freight  exceeding  twenty-five  thousand  dollars ; 
it  was  held  that  this  put  in  issue  of  plaintiff's  allegation  of  a  char- 
ter, and  tliat  the  plaintiffs  must  prove,  either  an  unconditional 
charter,  or  that  under  the  charter  alleged  b}'  defendants  the 
freight  had  exceeded  twenty-five  thousand  dollars.'^ 

»  Whepler  v.  Bavidge,  9  Exch.  6G8;  S.  C,  Eng.  Law  &  Eq.  64L 
«  Patrick  v.  Metcalt,  9  Bosw.  483. 


§  1256.  COVENANTS.  499 

§  1254.  Lien  for  Freight. — The  right  of  lien  for  freight 
does  not  absolutely  depend  on  any  covenant  to  pay  frt-iglit  on  the 
delivery  of  the  cargo. ^  Nor  can  charterers,  with  the  consent  of 
the  master  abroad,  make  a.ny  agreement  exonerating  the  goods 
from  freiglit,  and  defeating  the  lien  of  the  owners. ^  N(  r  can  the 
master  enter  into  such  agreement,  and  such  agreements  would 
give  no  rights  to  a  person  wlio  entered  into  them  with  the  knowl- 
edge of  the  charter  party. ^  But  the  master,  notwithstanding  the 
interfertnce  of  the  charterer,  may  retain  the  goods  until  his  lien 
shall  be  satisfied,  or  may  sue  the  consignee  after  delivery  of  the 
the  goods.'* 

§  1255.  Sale  of  Cargo. — "Where  owners  of  cargo  did  not 
apiiear,  and  the  master  put  up  at  auction  and  sold  the  cargo  on 
due  notice,  and  became  the  purchaser,  but  retained  the  goods  on 
the  vessel,  awaiting  a  higher  price,  he  had  no  right  thus  to  con- 
stitute the  ship  a  storehouse,  and  the  charterer  was  not  liable  for 
demurrage,  beyond  a  reasouable  time  for  discharging  after  the 
fii'st  sale.^ 


CHAPTER    III. 

COVENANTS. 

§  1256.    Warranty  of  Title  to  Real  Property. 

Form  No,  333. 

[TiTLB.] 

Tlie  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18....,  at ,  the 

defendant,   in   consideration  of dollars   to   him  paid, 

granted  to  the  plaintiff,  by  deed  [here  insert  description] ,  and 
in  his  said  deed  warranted  that  he  had  good  title  in  fee  simple  to 
the  said  property,  and  would  defend  the  plaintiff  in  his  possession 
of  the  same. 

II.  That  the  defendant  was  not,  but  one  A.  B.  was  then  the 
lawful  owner  of  the  said  lands,  in  fee  simple. 

III.  That  on  the day  of ,  18...,  the  said  A.  B. 

lawfuUy  evicted  the  plaintiff  from  the  same,  and  still  withholds 
the  possession  thereof  from  him. 

[DUMAND  OF   JUDGMBNT.] 

*  Abh.  onSh.,  pt  8,  c.  i.  sec   7,   p.         *  Graoie  T.  P«lmer.  8  Wh^nt.  fi05; 
177;  The  Volunteer,  1  Stirnti.551.  8  Kent  {M.  ed.).  138,  210,    220;  Abb. 

»  GrHcie  V.  Palmer  8  WheHt   605;  on  Sh  28fi-8;  Smith  Merc.  Lhw,  187; 

reversinir  Palmer  v.  Gracie,  4  Wash.  Shaw  v.  Thompson.  01«.  144. 

C.  Ct.  1 1 0.  »  Robbios  t.  Cudman,  4  B.  D.  Smith, 

•  The  Salem's  Cargo,  1  Sprague,  389.  815, 


500  FORMS  OF  COMPLAINTS.  §    1257. 

,  §  1257.   ActiononCovenant—Assigmient  of  Breach. — 

In  order  to  enable  one  to  in.iiiit;iin  an  action  on  a  covenant, 
there  must  not  only  be  a  breach  of  the  covenant,  but  some  lass 
or  (lainA|e  to  the  covenintee.^  The  covenant  of  quiet  enjoy- 
ment anil  of  general  warranty  requires  the  breach  to  show  an 
eviction. 2  Covenants  are  to  be  considered  dependent  on  or  inde- 
pendent according  to  the  intention  of  the  parties,  which  is  to 
be  deduced  from  the  whole  instrument. ^  Where  covenants  are 
dependent,  an  action  can  not  be  maintained  without  showing  a 
performance  on  plaintiff's  part  of  every  afflimative  covenant.* 
That  a  party  covenanted  by  indentui-e,  imports  that  a  covenant 
was  under  seal  ;5  and  an  averment  of  execution  imports  delivery.* 
The  grantee  in  a  deed-poll  is  bound  by  the  covenants  therein 
contained  to  be  performed  by  him,  and  an  action  of  covenant 
lies  for  a  breach  thereof.  By  acceptance  of  such  a  deed,  the 
grantee  is  estopped  from  denying  his  covenants,  or  that  the  seal 
attaciied  to  the  deed  is  his  own  as  well  as  the  grantor's."''  Even 
if  an  action  of  covenant  will  not  lie  in  such  case  against  the 
grantee,  a  court  of  equity  will  restrain  him  or  his  granlees  from 
doing;  what,  by  such  covenant,  he  has  agreed  not  to  do. 
§  1258.    Eviction,  Allegation  of. 

Form  No.  S34- 

That  the  defendant  has  not  warranted  and  defended  the 
premises  to  the  plaintiff ;  but,  on  the  contrary,  one  C.  D.  law- 
fully claimed  the  same  premises  by  a  paramount  title,  and  after- 
wards,   in  an  action  brought  by   him  in  the  superior  court  of 

the  county  of ,  state  aforesaid,  in  which  said  C.  D.  was 

plaintiff,  and  this  plaintiff   was  defendant,  the   said   C.  D.,    on 

the day  of ,  18..,  recovered  judgment,  which 

was  duly  given  by  said  court  against  this  plaintiff,  for  his  seisin 

and  possession  of  the  premises,  and  on  the day  of  , 

18..,  lawfully  entered  the  premises,  and  ousted  the  plaintiff 
therefrom,  and  still  lawfully  holds  the  plaintiff  out  of  the  pos- 
session thereof. 

§  1259.  Eviction,  What  is — Averment  of. — Eviction  by 
process  of  law  is  not  necessary  to  enable  an  action  to  be  main- 
tained on  the  covenant.^     And  an  averment  that  the  vendor  had 

1  Swall  V.  Clarke,  51  Cal.  227.  Phillips    v.    Clift,    4  Hurlst  &    N. 

;  «  i^ickertv.  Snyder,  9  Wend.  416;  168. 

Mai-3t<»n  V.  H'>bbi»,  2  M«ss.  433.  «  Brinckerhoff  v.  Lawrence,  2  Sandf. 

»  Philndelphia  R.  R.  Co.  v.  Howard,  Ch.  400. 

13  How.  (U,  S.)  307,  839.  '  Atlantic  Dock  Co.  v.  Leavitt,   54 

.  *  Webster  v.  Warren,  2  Wash.  C.  N.  Y.  35. 

Ct.  4'.«.  « Id, 

'Cabell  v.  Vaughan,  1  Saund.  291 ;  »  McGary  v.  Hastings,  89  Cal  860. 


§  1261.  COVENANTS.  501 

not  a  good  and  sufficient  title  to  the  said  tract  of  land,  and  by 
reason  thereof  the  said  plaintiffs  were  ousted  and  dispossessed 
of  the  said  premises  by  due  course  of  law,  is  sufficient.^  In  a 
declaration  upon  a  covenant  of  warranty,  it  is  necessary  to 
allege  substantially  an  eviction  by  title  paramount;  but  no 
formal  terms  are  prescribed  in  which  the  averment  is  to  be 
made.3  ^  purchaser  in  possession  can  not  reclaim  the  purchase 
money  on  account  of  defect  in  the  title,  unless  he  has  been 
evicted  or  disturbed.  ^  Nor  on  the  ground  that  the  title  ex- 
isted elsewhere  than  in  the  grantor.*  That  the  plaintiff  was 
lawfully  evicted  from  the  right  and  title  to  said  premises  by  a 
paramount  and  lawful  title  to  the  same,  does  not  import  an 
ouster  from  possession.^  Where  the  covenantee  is  held  out  of 
possession  by  one  in  actual  posses  ion  under  a  paramount  title, 
the  covenant  is  broken.^  The  use  of  a  right  of  way  by  the  party 
entitled  to  it,  is  an  eviction  of  the  servient  estate,  within  a  cov- 
enant of  warranty  against  all  "lawful  claims,"  for  which  the 
latter  may  sue  as  assignee  of  the  covenantee.' 

§  1260.  Judgment  Covenants. — Where  the  parties  to  a 
deed  covenanted  severally  against  their  own  acts  and  incum- 
brances, and  also  to  warrant  and  defend  against  their  own  acts 
and  those  of  all  other  persons,  with  an  indemnity  in  land  of  an 
equivalent  value,  in  case  of  eviction,  these  covenants  are  inde- 
pendent, and  it  is  unnecessary  to  allege  in  the  declaration  any 
eviction,  or  any  demand,  and  refusal  to  indemnify  with  other 
lands,  but  it  is  sufficient  to  allege  a  prior  incumbrance  by  the 
acts  of  the  grantors,  etc. ;  and  that  the  action  might  be  sus. 
tained  on  the  first  covenant  for  the  recovery  of  pecuniary  dam- 
ages.^ 

§  1261.  General  Covenant  ofWarranty. — If  a  deed  con- 
tains a  general  covenant  of  warranty  of  lands  thereby  intended 
to  be  conveyed,  and  also  a  covenant  that  if  any  portion  of  the 
land  has  been  before  conveyed  to  other  persons,  the  grantor 
will  convey  to  the  grantee  other  lands  of  like  quality,  the 
former  covenant  relates  to  land  which  the  deed  purports  to 
convey,  and  not  to  the  land  which  the  grantor  covenanted  to 
convey  in  the  latter  covenant.'  Where  land  is  sold  with  cove- 
nant of  warranty,  accompanied  with  delivery  of  possession,  and 

iDnyv.  Chii»m,  10  Wheat.  449.  «  Whity  v.  Hightower,  12  Sraed.  & 

«  Kirk.Ti  V.  Siivder,  9  WVnd.  416;  M.  478. 

Dav  V.  Chism,  10  Wht-at.  449.  '  Kuss  v.  Steele.  40  Vt.  310. 

«  S«lmoti  V.  HoffmHn,  2  ChI.  138.  «  DuvhII  v.  Cr.iig.  2  Wlie>.i.  45. 

«  K..\vl«T  V  bmith.  2  ChI.  44.  »  Vauce  v.  Peua,  33  Cal.  t»31. 
*  1^3  duiiLerg  V.  (Jotbeal,  1  Duer,  176. 


502  FORMS  OF  COMPLAINTS.  §  1262. 

the  purchaser  gave  a  note  in  payment,  the  warranty  and  the 
prumi~e  to  pay  are  independent  covenants.^  A  covenant  of  the 
grantor,  warranting  the  title  of  the  land  sold  as  "  indisputable 
and  satisfactory,"  is  not  broken  if  tlie  title  is  good  and  valid.* 
A  covenant  of  non-claim  in  a  deed  amounts  to  a  covenant  of 
warranty,  and  operates  equally  as  an  estoppel. ^  The  covenant 
of  warranty  runs  with  the  land,  and  the  vendor  is  liable  directly 
to  the  person  evicted.'*  Where  a  covenant  of  warranty  is  based 
upon  a  right  or  title,  which  is  subsequently,  by  a  judgment  of 
the  court,  adjudged  invalid,  and  five  years  are  given  by  statute 
to  appeal  from  said  judgment,  an  action  for  breach  of  the  cov- 
enant will  not  lie  till  the  five  years  have  expired.* 

§  1262.  Notice  of  Action. — Verbal  notice  is  sufHcient.o  If 
the  covenantor  has  notice  of  the  action,  the  covenantee  is  not 
bound  to  defend.'  The  proceedings  will  be  conclusive  against 
the  covenantor  in  this  action.^ 

§  1263.  Remedy. — If  a  party  takes  a  conveyance  without 
covenants,  he  is  without  remedy  in  case  of  failure  of  title ;  and 
if  he  takes  a  conveyance  with  covenants,  his  remedy  upon  fail- 
ure of  title  is  confined  to  them.^ 

§  1261.     Special  Damages — Allegation  of. 

Form  No.  SS5. 

That  by  reason    thereof  the   plaintiff  has  not  only  lost  said 

premises,  but  also  the  sum  of dollars,  by  him  laid  out 

and   expended  in  and  upon  the  said  premises,  in  repairing  and 

improving  the  same,    and   also    the     sum   of  dollars, 

costs  and  charges  sustained  by  the  said  A.  B.,   in   prosecuting 

his   action   for  the  recovery  thereof,  and  the   sum  of 

dollars,  for  his  own  costs,  charges,  and  counsel  fees  in  defend- 
ing said  action. 

§  1265.  Breach  of  Covenant  of  Warranty — Another 
Form. 

Form  No.  S38 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of  ,  18...,  at   ,  th© 

defendant,  by  his  deed  of  that  date,  duly  executed,  in  consid- 
eration of dollars,  sold  and  conveyed  in  fee  simple,  to 

the  plaintiff,  certain  land  [describe  it]. 

I  Norton  V.  Jackson,  5  Cal.  2r,3.  •  See  Kelly  v.  Dutch  Church     of 

8  VVihUTV.  Stock,  29  Cal  407.  Schenectady.  2  Hill,  106. 
•  Gr<e  V.  Moore,  14  (Jal.  472.  ''  Jackson  v.  Marsh,  5  Wend.  44» 

•Blackwell    v.    Atkinson,    14   Cal.         *  Cooper  v.  Watson,  10  Id.  202. 
470  •  Peabody  v.  Phelps,  9  Cal.  213. 

»llills  V.  Sherwood,  33  Cal.  474. 


§   1266.  COVENANTS.        '  503 

II.  That  the  defendant,  by  the  same  deed,  covenanted  as 
follows  [copy  the  covenant]. 

III.  That  the  defendant  had  not,  at  the  time  of  the  execution 
of  said  deed,  a  good  and  sufficient  title  to  said   premises,  and 

by  reason  thereof,  on  the day  of   ,  18...,  at  ..  , 

the  plaintiff  was  ousted  and  dispossessed  of  the  said  premises 
by  due  course  of  law. 

[Or,  III.  That  one  G.  H.,  at  the  time  of  the  execution  of  the 
said  deed  and  from  thence,  had  lawful  right  and  paramount 
title  to  the  said  premises,  and  by  virtue  thereof,  after  the  ex- 
ecution of  said  deed,  on  the day  of  ,  18...,  en- 
tered upon  the  possession  thereof,  and  ousted  and  dispossessed 
by  due  process  of  law,  and  kept,  and  still  keeps,  the  plaintiff 
from  the  possession  of  the  same.  That  the  plaintiff  has  also 
been  compelled  to  pay  the  costs  and  charges  sustained  by  the 

said   G.  H.,   in   prosecuting  a  certain   action   in   the  

court,  in  county,  for  the  recovery  of   said  premises, 

which  amounted  to dollars,  and  to  pay  out  the  addi- 
tional sum  of  dollars  in  endeavoring  to  defend  such 

action.] 

[Demand  oy  Judgmknt.] 

§  1266.  By  Assignee  of  Grantee  against  Previous 
Grantor. 

Form  No.  SS7. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  [Allege  sale  to  one  C.  D.] 

II.  [Allege  and  set  out  copy  of  covenant.] 

III.  That  the   said   C.  D.  afterwards,  on   the   day  of 

,  18...,  at  ,  by  deed  duly  executed,  in  con- 
sideration of  the  sum  of dollars,  conveyed  the   said 

premises  to  one  E.  F.,  his  heirs  and  assigns;  and  the  said  E.  F. 

afterwards,  on  the day  of ,  18...,  at ,  by 

his  deed  of  that  date,  duly  executed,  in  consideration  of  the  sura 
of  dollars,  conveyed  the  same  premises  to  the  plaintiff. 

IV.  That  the  plaintiff  afterwards,  on  the day  of ». 

18...,  at  ,  entered  into   and  was  possessed  of  said! 

premises. 

V.  That  the  defendant  had  not  at  the  time  of  the  execntioa 
of  his  said  deed,  nor  has  he  since  had,  a  good  and  sufficient 
title  to  the  said  premises ;  by  reason  whereof  the  plaintiff  was 

afterwards,  on  the day  of ,  18...,  ou'«ted  aud  dia- 

possessed  of  the  said  premises  by  due  course  of  law, 

[DkMAMS  of  JUDUMKMT.i 


:604  FORMS  OF  COMPLAINTS.  §   1267. 

§  1267  By  Heirs  of  Covenantee  agakist  Previous 
Grantor. 

Form  No.  SS3. 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  fAllege  sale  as  preceding  forms.] 

II.  [Allege  and  set  out  copy  of  covenant.]] 

III.  That  the  said  C.  D.  afterwards,  and  on  the  same  day, 
entered  into  and  was  possessed  of  said  premises,  and  after- 
wards, on  the day  of  ..=..  18...,  at , 

said  C.  D.  died,  whereupon  the  said  premises,  and  his  estate 
therein,  descended  to  the  plaintiffs,  as  children  and  co-heirs  of 
the  said  C.  D.,  deceased;  and  that  they  afterwards,  on  the  same 
day,  entered  into  and  were  possessed  of  said  premises,  until 
ousted  and  dispossessed,  as  hereinafter  mentioned. 

[Here  set  forth  the  breach,  etc.,  as  in  the  preceding  forms.] 
[Demand  op  Judqmknt.] 

§  1268.  By  Devisee  of  Covenantee,  against  Previous 
Grantor. 

Form  No.  SS9. 
[Tltltc.] 
The  plaintiff  complains,  and  alleges: 
I.  and  II.   [Allege  sale  and  covenant.] 

III.  That  the  said  E.  F.,  afterwards,  and  on  the  same  day, 
entered  into  and  was  possessed  of  said  premises;  and  after- 
wards, on  the day  of ,  18 . . ,  at ,   made 

his  last  will  and  testament,  in  writing,  and  thereby,  amongst 
other  things,    devised  the   said   premises  to  the  plaintiff;  and 

afterwards,  on  the day  of ,  18 . . ,  at 

ithe  said  E.  F.  died,  leaving  such  will. 

IV.  That  on  the day  of ,    18..,  the  said 

■will  was  proved  and  admitted  to  probate  in  the  probate  ct)urt  of, 
etc.,  and  by  order  of  said  court,  letters  testaraentarj'^  were 
issued.  [If  the  property  is  situated  in  a  county  other  than  the 
one  where  the  will  was  admitted  to  probate,  add :  That  after- 
wards, on  the day  of ,   18 . . ,   by  an  order  of 

•the  probate  court  of county  ( where   the  premises    are 

situated),  an  authenticated  copy  of  said  will,  from  the  record 
aforesaid,  with  a  copy  of  said  order  of  probate  annexed  thereto, 
was  filed  of  record  in  the  probate  court  of  said  county  of 
,,,... . . .  (where  premises  lie),  and  duly  recorded.] 

T.  That  thereupon  the  plaintiff  entered  into  posses«i'>n  of 
the  said  premises,  and  was  possessed  thereof  until  ousied  and 


§  1270.  COVENANTS.  505 

dispossesed  as  hereinafter  mentioned.     [Set  forth  breach,   etc. 
as  in  preceding  forms] 

fDKMAND  OT  JUDGMUXT.J 

§  1269,     Warranty  as  to  Quantity. 

Foiin  No.  340. 

[TlTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of ,  18...,  at  ,  the 

defendant  warranted  a  certain  farm  in  township,  

county,   state  of ,  to   contain  acres  of  land, 

and  thereby  induced  tlie  plaintiff  to  purchase  the  same  from 
him,  and  pay  to  him     .  »  dollars  therefor. 

II.  That  the  said  farm  contained  only acres,  instead 

of acres,  the  quantity  sold  to  plaintiff  by  defendant. 

III.  That  plaintiff  was  damaged  thereby  in  the  amount  of 
dollars. 

[Dema>t)  of  Jttdgmknt.] 
§  1270.     On  Coveaant  Against  Incumbrances  on  Real 
Property. 

Form  No.  S41. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That    on  the.     .   day    of ,  18...,    at ,  the 

defendant,   in  consideration     of   dollars,   to    him   paid, 

granted  to  the  plaintiff,  by  deed,  in  fee  simple,  a  farm  in  the 
town  of ,  county  of [or  otherwise  briefly  des- 
ignate the  property]. 

II.  That  said  deed  contained  a  covenant  on  the  part  of  the 
defendant,  of  which  the  following  is  a  copy  [copy  of  cove- 
nant]. 

III.  That  at  the  time  of  the  making  and  delivery  of  said  deed 
the  premises  were  not    free  from  all  incumbrance,   but  on  the 

contrary,  the  defendant  before    that  lime,  on   the day  of 

,  18...,  at  .......c....,  by  deed  in  the  nature  of  a  mort- 
gage, duly  executed,  had  mortgaged  the  said  premises  to  one 
R.  S.,  to   secure  the  payment  of  dollars,  with  interest. 

IV.  And  for  a  further  breach,  the  plaintiff  alleges,  that  on 

the    day   of  ,   18...,   in  the  ........  court    of  the 

judicial  district  of county,   in  this  state,  judgment 

was  rendered  against  the  defendant  for  the  sum  of dol- 
lars, in  an  action  in  which  the  said  [incumbrancer]  was  plaintiff, 
and  the  defendant  herein  was  defendant,  which  judgment  was, 

on  the day  of ,  18...,  docketed   in   said   county  of 

[where  premises  are  situated]  and  which  judgment  at  the  time 


506  FORMS  OF  COMPLAINTS.  §   1271. 

of  the  execution  and  delivery  of  the  deed  in  the  nature  of  a 
mortgage,  remained  unpaid  and  unsatisfied  of  record. 

V.  And  for  a  further  breach,  the  plaintiff  alleges,  that  at  the 
time  of  tlie  execution  and  delivery  of  said  deed  the  premises 
were  subject  to  a  tax  theretofore  duly  assessed,  charged,  and 

levied  upon  the  said  premises  by  the  said  city  of ,  and 

the  officers  thereof,  of  the   sum  of dollars,  and  which 

tax  was  then  remaining  due  and  unpaid,  and  was  at  the  time  of 
the  delivery  oi!  said  deed  a  lien  and  incumbrance  by  law  upon 
the  said  premises. 

VI.  Tnat  by  reason  thereof  the  plaintiff  paid,    on    the .,. 

day  of ,  18...,  the  sum  of dollars  in  extinguish- 
ing the  [here  state  what,  whether  t!ie  judgment,  lien,  tax,  or 
other  incumbrances,  or  all  of  them]  aforesaid,  to  his  damage 

dollars. 

[Demand  ot  Judgmknt.] 

§  1271.  Assignment  of  Breach — Payment  by  Cove- 
nantee. — A  breach  of  covenant  is  sufficiently  assigned  by  nega- 
tiving the  words  of  the  covenant.^  If  the  special  facts  to 
negative  a  covenant  are  necessarily  included  in  the  general 
averment  of  the  breach,  a  distinct  and  substantive  averment  of 
them  is  not  necessary. ^  A  general  covenant  against  incum- 
brances is  broken  by  the  existence  of  an  incumbrance  at  the 
making  of  the  deed.  The  breach  must  set  out  the  particular 
incumbrance  relied  on.^  That  certain  persons  recovered  judg- 
ment against  the  owner,  which  were  liens  and  incumbrances,  is 
sufficient,  without  stating  the  fact  of  docketing  said  judgment, 
or  its  legal  effect.*  A  covenant  that  the  whole  amount  of  a 
judgment  is  due  is  not  to  be  construed  to  mean  that  no  one  of 
the  judgment  deUtors  has  been  released.*  When  an  action  is 
brought  on  the  breach  of  a  covenant  in  the  contract,  it  is 
enough  to  allege  the  conveyance  according  to  its  legal  effect, 
showing  a  consideration  for  the  covenant,  and  then  set  foi'lh  a 
copy  of  the  covenant,^  thus  combining  the  two  systems  of 
pleading  for  the  sake  of  brevity.  This  method  will  be  desir- 
able wlien  the  contract  is  of  great  length.  So,  in  a  covenant 
to  pay  certain  accounts,  it  is  not  necessary  to  set  out  the  ac- 

*  McGeehan  v.  McLaughlin,  1  Ilall,  compare     People    v.    Eussell,      Id. 

87.  570 

«  Randall  v.  C.  Hnd  D.  Canal  Co.,  1  *  Catly  v.  Allf>n,  22  B;irb.  S'^S;  see, 

Harr.    I.')!  ;  i5l■"(•k^'rl^i(I^Jo'8  Adui'r  v.  al'^o,     (JhtimUorlain     v.  Gi'rIiMin,     20 

L»»e's  Ex'rs,  3  Bilib,  3o0.  Joln.s.  74ti;  rnvTsino;  a  C"..  "JO  M.  144. 

8  Sheltori   v.  Peasp,     10    Mo.    47^;  &  K-miuU  v.  Buchuu,  5  AJO,  iV.  (N. 

.Tnllirtiid    V.    Biirj-ott,     II    Johns,    ti;  S.)  412. 

Tliomaa  v.  Vau  JSoaS.  4  Weud.  64^;  «  bwuu  on  Pi.  198. 


S   1275.  COVENANTS.  507 

counts  so  pair!,  thereby  producing  great  prolixity.^  "Where  a 
complaint  avers  a  sale  and  conveyance,  the  existi^nce  of  the 
mortgage,  the  execution  of  the  bond,  the  failure  of  the  defend- 
ant to  comply  with  its  conditions,  consequent  sale  of  the 
premises  under  the  mortgage,  and  their  loss  to  the  plaintiff,  it 
was  held  sufli  lent  on  demurrer.^  And  cons'dera  ion  need  not 
be  alleged,  as  in  pleading  on  a  sealed  instrument  the  seal  im- 
ports considL'rati(m.  Without  the  averment  of  paym  'nt  of  the 
incumbrance,  plaintiff  can  recover  only  nominal  damages.^  Ex- 
cept in  the  case  of  a  covenantee  who  bougtit  for  the  purpose  of 
a  resale,  with  notice  to  the  covenantor  at  the  time  of  sale.*  In 
such  a  case  those  fact?,  and  the  diminution  in  value  of  the 
estate,  and  the  expenditure  in  paying  off  the  incumbrance, 
should  be  alleged,  the  latter  as  a  special  averment  of  damage.^ 

§  1272.  The  Sams — Des  crip  lion  of  Land  Conveyed. — 
A  brief  description  will  be  sufflcii>nt  with  prolert  of  c  inveyance.® 

§  1273.  Condition  Prece:^ent. — Wiiere  a  deed  contains  a 
covenant  that  in  case  the  guarantees  shall  pay  a  certain  sum  of 
money  before  a  certain  day  "  then  this  instrument  is  to  take 
effect  as  a  full  and  complete  conveyance  in  fee  of  all,  etc.,  take 
the  estate  belonging  to  the  covenantor,  etc.,  the  payment  of 
the  purchase  money  was  a  coadiLion  precedent  to  vesting  the 
estate.' 

§  1274.  Covenant  in  Mortgage. — If  the  mortgagor  cove- 
nants to  pay  and  discharge  all  legal  mortsrages  and  incum- 
brances, tiie  covenant  will  make  the  mortgagor  personally  liable 
for  the  sum  due  and  secured  by  an  executory  contract  for  a 
mortgage  not  under  seal  or  reconied  if  the  mijrtgagor  had  actual 
notice  of  it.  and  the  mortgage  will  become  security  for  the  per- 
formance of  the  covenant.^  It  does  not  put  the  purchaser  from 
the  mortgagor  upon  any  inquiry  as  to  any  mortgages  or  incum- 
brances not  of  record.^ 

§  1275.  Measure  of  Damages. — A  party  having  been  de- 
feated in  a  suit  against  him  for  damages  for  having  interfered 
with  an  easement  on  his  land  may  recover  of  his  warrantor  the 
damage  he  has  sustained  in  consequence  of  the  breach  of  the 
covenant  against  incumbrances,  and  such  costs  and  expenses  as 

»  Jones  V.  Hurbaugh,  5  N.  Y.  Leg.  *  De  Forest  v.  L«>ete.  16  Job  is.  122. 

Obs.  19.  MSrtui-d.  283,    n.    2;    2   Chit    PI. 

2  McCartyv.  Beach.  ]0Cal.4Rl.  102,  n.  i;  Dunham  v,  Pratt,  14  Johns. 

•Delnversriie  v,    Norris,    7    Johns.  S72. 

858:  HhII  v.  Dean,  13  Id.  105;  Stauard  '  >fe->ick  v.  Sund^^rland.  6  Cal.  297. 

y.  Eldridcre,  16  Id.  254.  *  Uacouillat  v.   Sansevain,    32    Cal. 

♦  lialcholJor    V.  tjturgis,    3    Cush.  8"H. 

201.  •  Racouillat  v.  Rene,  82  Cal.  450, 


608  FORMS  OF  COMPLAINTS.  §  1276. 

he  has  fairly  and  in  good  faith  incurred  in  attempting  to  main- 
tain and  defend  his  title. ^  He  w^s  not  bound  to  follow  the  ad- 
vice of  his  warrantor  by  suing  the  party  wlio  claimed  the  ease- 
ment and  entered  upon  the  premises.'  "There  is,"  says  Lord 
Mansfield,  in  Lowe  v.  Peers,  "a  difference  between  covenants 
in  general  and  covenants  secured  by  a  penalty  or  forfeiture.  In 
the  latter  case,  the  obligee  has  his  election  ;  he  may  either  bring 
an  action  of  debt,  and  recover  the  penalty,  after  which  recovery 
of  the  penalty  he  can  not  resort  to  the  covenant ;  or,  if  he  does 
not  choose  to  go  for  the  penalty,  he  can  proceed  upon  the  cove- 
nant and  recover  more  or  less  than  the  penalty  toties  qiioties.'*^ 

§  1276.  Estoppel. — One  who  has  covenanted  with  executors, 
as  such,  that  third  persons  should  8a,tisfy  and  discharge  a  mort- 
gage, is  thereby  estopped  from  denying  the  right  of  executors 
to  sue  on  such  covenant  in  their  representative  caj)acity.^  But 
a  subsequent  grantee  may  maintain  an  action  against  the  grantor 
on  a  covenant.^ 

§  1277.  Incumbrances. — The  term  "incumbrances"  in- 
cludes taxes,  assessments,  and  all  liens  upon  property. ^  No  tax 
or  assessment  can  exist  until  the  amount  thereof  is  ascertained 
and  determined.  Hence,  although  the  expense  has  been  incurred 
at  the  time  of  conveyance,  to  meet  which  a  local  assessment  is 
subsequently  laid  upon  the  premises  conveyed  which  aie  legally 
chargeable  therewith,  such  assessment  does  not  cou'^titute  a 
breach  of  the  covenant  against  incumbiances 7  Only  nominal 
damages  can  be  recovered  until  after  actual  payment  of  the  in- 
cumbrance.^ 

§  1278.  Purchase  after  Breach. — A  purchaser  of  a  mill, 
after  breach  of  covenant  by  a  railroad  company,  witli  its  former 
owner,  to  dig  a  new  channel,  etc.,  for  the  mill  stream,  can  not 
sue  on  said  covenant.^  Where  defendant  made  a  valid  agree- 
ment with  three  partners  not  to  do  business  in  a  certain  place, 
and  two  of  said  partners  sold  out  to  a  third,  and  left  said  place, 
but  the  third  resold  to  defendant,  and  released  said  agreement, 

*  Smith  V.   Sprague,  40  Vermont,  ♦  Farnhnm  v.  Mallory,  5  Abb.  Pr. 

48.  (N.  S  )  S80. 

»  Id.  *  CoU>y  V.  Osgood,  29  Barb.  339. 

•Sedgwick    on  Damages,  424;  see  •  Civil  Code  Cat.,  sec.  1 114. 

Lowe  V.    Peers,   4    Burr.    222o;  also  '  Uowdnev  v.  Mayor  etc.,  54  N.  T. 

Bird  V.  Randall.  1  W.  Black.  873,  .8^7 ;  18t5;   see  De    Peysier  v.   Murphy,  39 

Winter  v.  Trimmer,  1    Id.  395;   Har-  N.  Y.  Supr.  (7  J.  &  Sp.)  255. 

risoii  V.  Wright.  13   East  843.     The  «  Reading  v.  Gray,  St    Id.  79:  see 

use  and  meaning  of  the  terms  "pen-  also  Blylhe   v.  Gately,  51   Cal.  236,  as 

ally"  and    "liquidated  damages"  in  to  when  taxes  become  a  lien, 

agreements  cnmmeiiitid  on  in  People  'Junction  K.  K.  Co.  v.  Sayers,  28 

T.  Love.  19  Cal.  ti77.  Ind.  318. 


§   1280.  COVENANTS.  509 

it  was  held  that  the  other  two  partners  could  not  sue  for  a  breach, 
as  th3  a-^reenjiit  was  incident  only  to  the  business.^ 

§  1271).  To  What  C  >venant  Attaches. — Every  covenant 
rela'in,'  to  tiie  thing  demised  attaches  to  the  Innd,  and  runs 
with  it.'  But  where  the  warranty  in  a  deed  contains  a  covenant 
to  "  warrant  and  defend  the  premises  conveyed,  from  and  against 
all  or  any  incumbrances,  claims  or  demands,  created,  made,  or 
suffered,  by,  through,  or  under  him,  and  against  none  other," 
the  warra-ity  in  the  deed  attaches  itself  to  the  interest  conveyed, 
and  not  to  the  land  itself. ^  A  covenant  of  seisin  runs  with  the 
land  and  is  divisible,  so  that  if  the  land  be  sold  in  parcels  to 
different  purchasers,  each  may  maintain  an  action  on  the  cove- 
nant.* Where  the  covenantee,  in  a  deed  of  land,  takes  posses- 
sion and  conveys,  a  covenant  of  warranty  in  the  deed  to  him 
will  pass  to  his  grantee,  although  the  covenantor  was  not  in 
possession  at  the  time  of  his  conveyance.^  A  covenant  to  con- 
vey, contained  in  a  lease,  runs  with  the  land  and  may  be  as- 
signed.^ 

§  1280.  The  Same,  where  the  Deed  Expressed  Spe- 
cif? lacumbrance. 

Form  No.  SlfS, 
[Ti  rn:.] 

The  plaintiff  complains,  and  alleges: 

I.  [As  in  preceding  form.] 

II.  That  by  said  deed  the  premises  conveyed  were  described 
as   being  subject,    nevertheless,    to  the  payment  of    a    certain 

mortgage  recorded  in  the  recorder's  otBce  at ,  on  the 

day  of ,  18..,  in  Book  A  of  mortgages  [or  other 

incumbrance,  describing  it],  and  no  other  incumbrances  were 
mentioned  or  specified  in  said  deed,  as  existing  upon  or  affect- 
ing said  premises  or  the  title  thereto. 

III.  That  said  deed  contained  a  covenant  on  the  part  of  the 
defendant,  of  which  the  following  is  a  copy  [copy  covenant]. 

IV.  That  at  the  time  of  the  making  and  delivery  of  the  said 
deed,  the  premises  were  not  free  from  all  incumbrances  other 
than  the  mortgage  therein  excepted,  but  on  the  contrary  [here 
set  out  any  or  all  other  incumbrances  as  breaches,  and  con- 
clude as  in  preceding  form]. 

[Dbmand  of  Judgmknt.] 

*  Gompers  v.  Rochester,  56  Fenn.        *  Weed  v.  Larkin,  54  111.  489. 

St.  194.  «Hagar    v.     Buck,    44    Vt.     285. 

»  Laffan  v.  Naglee,  9  Cal.  662.  "When   covenant  to  make  and  main- 

•  Kimball  v.  bemple,  2-5  Cal.  440.  tain     fence   runs  with   the  land,  see 
«  Schofield  V.  The  Homestead  Co.,  Bronson  v.  Coffin,  108  Mass.  175. 

82  Iowa,  317. 


610  FORMS  OF  COMPLAINTS.  §    1281. 

§  1281.  Implied  Covenant. — Where  a  deed  containing  the 
words  "grant,  bargain,  and  sell,"  recites  a  mortgage  existing 
at  the  time  of  the  conveyance,  with  a  warranty  against  the 
same,  the  general  covenant  implied  by  the  words,  "grant,  bar- 
gain and  sell,"  is  restrained  by  the  special  covenant.^  And  the 
special  covenant  is  not  a  covenant  to  pay  the  mortgage. 

§  1282.  Mortgage. — When  premises  are  described  in  the 
granting  part  of  a  deed  as  subject  to  a  mortgage,  such  mort- 
gage will  not  be  in  the  covenant  airainst  incumbrances.^  A  cove- 
nant by  a  vendor  of  real  estate,  that  neither  he  nor  his  assigns 
will  sell  any  marl  from  the  adjoining  premises,  will  not  be  en- 
forced in  equity  against  the  alienee  of  the  land  intended  to  be 
burdened  with  the  covenant.' 

§  1283.  On  a  Covenant  of  Seisin,  or  of  Power  to  Con- 
vey. 

Form  No.  S4S, 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  the  defend- 
ant, for  a  valuable  consideration,  by  deed,  couveyed  to  the 
plaintiff  in  fee  simple  [describe  the  property]. 

II.  That  said  deed  contained  a  covenant  on  the  part  of  the 
defendant,  of  which  the  following  is  a  copy  [copy  of  covenant]. 

III.  That  at  the  time  of  the  execution  and  delivery  of  said 
deed,  the  defendant  was  not  the  true,  lawful,  and  rightful 
owner,  and  had  not  in  himself  at  said  time  good  right,  full 
power,  etc.  [negative  the  words  of  the  covenant]. 

IV.  Whereby  the  plaintiff  has  sustained  damages  in  the  sum 

of dollars. 

[Demand  ok  Jodgmbnt.] 

§  1284.  Essential  Averments. — In  an  action  of  covenant 
it  must  appear  in  the  complaint  with  whom  the  covenant  was 
made,  the  performance  or  readiness  to  perform,  or  the  excuse 
for  non -performance  of  a  condition  precedent,  at  the  i)lace 
and  within  tlie  time  specified.*  An  action  cannot  be  main- 
tained on  a  covenant  of  seisin,  unless  a  breach  and  an  eviction 
be  alleged.*  And  when  there  has  not  been  an  eviction,  some- 
thing equivalent  must  be  averred.'  It  is  suflScient  to  negative 
the  words  of  the  covenant.'    It  is  not  necessary  that  a  breach 

1  Shelton  V.  Pease,  10  Mo.  473.  »  Robinson  v.   Neil,  3    Ohio.   625; 

•  Freeman  v.  Foster,  55  Me.  508.  King  v.  Kerr's  Adm'r,  6  Id.  165. 

"  Brewer  v.  Murshail,  4  C.  E.  Green,  •  Id.;  McGarry  v.  Hhsling*,  39  Cal. 

€37.  860. 

*  Keatley  v.  McLaugherty,  4  Mo.  ^4  Kent's  Com.  479;  Kickert  v. 
221.  Snyder,  9  Wend.  416. 


§   1286  COVENANTS.  511 

of  a  covenant  shonld  be  assigned  in  the  very  words  of  the  cove- 
nant.    It  is  sufficient  to  aver  what  is  substantiality  a  breach. ^ 

§  1285.  Implisd  Covenants. — A  deed  containing  the  words 
•'grant,  bargain,  sell,  and  enfeoff,"  is  operative  as  a  deed  of 
feoffment,  and  livery  of  seisin  is  not  necessary.^  And  under  the 
statute  of  Missouri,  it  was  held  that  they  are  separate  and  inde- 
pendent of  each  other.'  In  Illinois,  the  words  "  grant,  bargain, 
and  sell,"  express  covenants  that  the  grantor  is  seised  of  an  in- 
defeasible estate  in  fee  simple,  free  from  incumbrances  done  or 
suffered  by  the  grantor,  as  also  for  quiet  enjoyment  against 
the  grantor,  his  heirs  and  assigns.*  It  embraces  such  incum- 
brances only  as  the  vendor  has  control  of,  and  not  an  outstand- 
ing mortgage  created  by  his  grantor.^  In  California  the  civil 
code  provides  that  *'  from  the  use  of  the  word  '  grant '  in  any  con- 
veyance by  which  an  estate  of  inheritance  or  fee  simple  is  to  be 
passed,  the  following  covenants,  and  none  other,  on  the  part 
of  the  grantor,  for  himself  and  his  heirs  to  the  grantee,  his 
heirs  and  assigns,  are  implied,  unless  restrained  by  express 
terms  in  such  conveyance ;  1.  That  previous  to  the  time  of  the 
execution  of  such  conveyance,  the  grantor  has  not  conveyed 
the  same  estate,  or  any  right,  title,  or  interest  therein,  to  any 
person  other  than  the  grantee ;  2.  That  such  estate  is  at  the  time 
of  the  execution  of  such  conveyance  free  fro.n  incumbrance 
done,  made,  or  suffered  by  the  grantor,  or  any  person 
claiming  under  him.  Such  covenants  may  be  sued  upon  in  the 
same  manner  as  if  they  had  been  expressly  inserted  in  the  con- 
veyance."^ Prior  to  the  code,  however,  it  was  held  that  where 
there  are  no  covenants  of  seisin,  etc.,  in  the  deed,  the  law  will 
not  imply  other  covenants  than  those  for  quiet  possession.' 

§  1286.  Damages,  Measure  of. — When  the  grantor,  in  a 
deed  containing  a  covenant  of  seisin,  has  no  title  to  the  land, 
the  covenant  is  broken  the  instant  it  is  made.^  Such  a  covenant 
is  an  assurance  to  the  purchaser  that  the  grantor  has  the  estate 
both  in  quantity  and  quality.^  But  where  the  vendor  was  actually 
seised,  but  of  a  defeasible  estate,  the  damages  should  be  merely 
nominal  until  the  estate  has  been  actually  defeated.^''  The 
rule  of  damages,  where  there  has  been  an  actual  loss    of   the 

1  Fletcher  v.  Peck,  6  Cranch,  87.  «  Nichols  v.  Nichnla,  5  Hun,  108. 

»  Perry  v.  Price,  1  Mo.  558.  •  Pecare  v.  Chouteau,  13  Mo.  527. 

« Alexander  V.  Schreiber,  10  Mo.  46.  "  Reese    v.    Smith.    12     Mo.     344; 

«  Mosly  V.  Hunter,  15  Mo.  HtZ.  Bircher  v.  Watkins.  13  Id.  521 :  Mosely 

*  Armstrong  V.  Darby,  26  Mo.  517.  v    Hunter,  16    Id.  322;  see  also  Co  w- 

•  Sec.  1 1 1 3.  dery  v.  Colt,  44  N.  Y.  882. 
» Fowler  v.  Smith,  2  Cal.  39. 


512  FOKMS  OF  COMPLAINTS.  §    12S7. 

premises,  is  the  purchase  money  and  interest.  Where  the  plaint- 
iff has  purchased  the  paramount  title,  it  is  the  sum  actually  and 
in  good  faith  paid  for  the  paramount  title,  and  the  amount  ex- 
pended in  defending  his  possession;  provided  such  damages 
shall  in  no  case  exceed  the  purchase  money  and  interest.^ 

§  1287.  Death  of  Covenantor. — Where  the  covenantor  dies 
before  the  discovery  of  tbe  defect  of  title,  and  his  personal  rep- 
resentatives procr  ire  a  good  title,  and  tender  a  deed  to  the  cov- 
antee,  a  court  of  equity  will  compel  him  to  accept  such 
conveyance,  and  enjoin  a  judgment  at  law  for  a  breach  of  the 
covenant.* 

§  1288.    Grantee's  Covet? ant  to  Build. 

Form  No.  S44, 

[TtTT.K.] 

Tiie  plaintiff  complains,  and  alleges: 

I.  That  in  consideration  that  the  plaintiff  would  sell  and  con- 
vey to  the  defendant  a  lot  of  land  [ilescribe    it],  for  the  sum  of 

dollars,  the  defendant,  on  the  day  of , 

18...,  agreed  that  he  would  erect  upon  the  premises  a  good 
brick  house,  to  be  occupied  as  a  dwelling,  and  that  he  would 
not  erect  upon  the  premises  any  building  that  would  be  a 
nuisance  to  the  vicinity  of  the  premises. 

II.  That  the  plaintiff  did  accordingly  sell  and  convey  to  the 
defendant  said  premises  for  said  sum,  but  the  defendant  has 
not  erected  a  good  brick  house  on  the  lot,  to  be  occupied  as  a 
dwelling ;  but,  on  the  contrary,  has  erected  upon  said  premises  a 
wooden  building,  to  be  used  as  a  slaughter-house. 

III.  That  the  defendant  thereliy  has  prevented  other  lots  in 
the  vicinity,  owned  by  the  plaintiff,  from  becoming  valuable  to 
the  plaintiff,  as  they  would  otherwise  have  become,  and  has  in- 
juriously affected  their  condition,  and  hindered  the  plaintiff  from 
selling  tliem;  to  his  damage dollars. 

[DkMAND  or   JUDOMKNT.] 

§  1289.  Covenant  to  Baild  Party  Wall.— A  covenant 
between  A.  and  B.,  owners  of  adjoining  premises,  that  A.  may 
build  a  party  wall,  half  on  each  lot,  and  that  when  B.  uses  the 
same  he  shall  pay  half  its  cost,  is  personal,  and  does  not  pass 
with  the  land  to  A.'s  grantee. ^ 

§  1290.  Covenant  to  Remove  Buildings.— A  covenant 
entered  into  between  owners  of  adjoining  city  lots,  for  them- 
selves and  all  claiming  under  them,   to  the  effect  that  all  build- 

»  McGary  v,  Hastings,  39  Gal  860.  «  Reese  v.  Smith,  12  Mo.  344. 

»  Block  V.  Isham,  28  Ind.  37. 


§  1293.  COVENANTS.  513 

in^s  erected  on  snob  lots  shall  be  set  back  a  specified  distance 
from  the  line  of  the  street  on  which  the  lots  front,  is  a  convenant 
which  equity  will  enforce  between  the  parties  to  it,  in  favor  of 
one  against  the  other,  or  in  favor  of  one  against  any  subsequent 
granteeof  either  lot.'  Where  the  lessee  stipulates  to  surrender 
the  premises  at  the  end  of  the  term,  "reasonable  use  and  wear 
thereof,  and  damages  by  the  elements,  excepted,"  it  does  not 
authorize  the  tenant  to  remove  buildings  erected  by  him  on  the 
lot,  even  if  there  be  evidence  of  an  oral  agreement  to  that  effect.* 

§  1291.  Special  Damages. — In  an  action  to  recover  dam- 
ages for  the  breach  of  a  contract,  if  the  damages  do  not  neces- 
sarily arise  from  the  breach  complained  of,  so  as  to  be  implied 
by  law,  the  plaintiff  must  specify  in  his  declaration  the  particu- 
lar damage  he  has  sustained,  or  he  will  not  be  permitted  to 
give  evidence  of  it.^ 

§  1292.  Stipulation  to  Build.— "Where  the  lessee  stipu- 
lated to  build  a  wharf,  but  specified  no  particular  time,  the 
lessor,  before  the  expiration  of  the  term,  could  have  no  legit- 
imate cause  of  complaint.*  If  the  lessee  covenants  to  build  on 
the  demised  premises  within  a  given  time,  the  covenant  is  not 
a  continuing  covenant,  and  if  he  fails  to  build,  the  receipt  of 
rent  by  the  lessor  accruing  after  the  end  of  the  time  given  is  a 
waiVerof  the  forfeiture.^ 

§  1293.  On  Co\renant  against  Nuisances — By  Grantor 
against  Grantee. 

Fonn  No.  S45, 
[TrrLK.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the  day   of ,  18...,    at  , 

the  plaintiff,  by  his  deed,  conveyed  to  the  defendant,  for  a 
valuable  consideration,  as  well  as  in  consideration  of  the  cove- 
nant hereinafter  mentioned,  a  lot  of  land. 

II.  That  said  deed  contained  a  covenant  on  the  part  of  the 
defendant,  the  grantee  therein,  of  which  the  following  is  a  copy 
[copy  of  covenant  again^^t  nuisances]. 

III.  That  said  deed  was  delivei*ed  by  the  plaintiff,  and  by  the 
defendant  duly  accepted. 

IV.  That  the  defendant  has  erected,  and  suffered  and  per- 
mitted to  be  erected,  on  said  premises,  a  building  occupied  and 
used  as  a  slaughter-house. 

V.  That  the    offal   and   blood  in   and   carried  out  from  said 

»  Eoberta  v.  Levy,  8  Abb.  Pr.,  N.  «  Bogert  v.  Biirkhalter.  2  Barb.  525, 

S..  311.  '  *  Chipman  V.  Emeric,  5ChI,49. 

*  Jungerman  v.  Bovee,   19  Gal.  855.  '  McCJlynn  v.  Moore,  25  Cal.  384* 
EsTsx,  Vol.  I — 33. 


514  FORMS  OF  COMPLAINTS.  §   120^4. 

slaughter-house,  and  the  offen<«ive  smell  created  thereby,  is  a 
nuisance  to  the  vicinity  of  the  said  premises  and  to  the  plaintiff, 

whose  house  is  adjoining;  to  his  damage  dollars. 

[Dkmand  op  .Judqmknt.] 

§  1294.  Alleged  Nuisance — In  such  an  action  it  must  be 
shown  what  the  alleged  nuisance  is,  and  how  it  has  injured  the 
■complainant.^ 

§  1295.  On  a  Continuing  Covenant  to  Maintain  a 
Fence. 

Form  No.  S46. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of  ,  18...,  the  plaintiff  and 

defendant  then  were  the  owners  of  lands  adjoining,  and  then 
made  an  agreement  in  writing,  under  their  hands  and  seals,  of 
which  the  following  is  a  copy  [copy  agreement]. 

II.  That  the  plaintiff  has  duly  performed  all  the  conditions 
thereof  on  his  part. 

III.  That  the  defendant  did  not,  after  the  erection  of  said 
fence,  maintain   the  same  and  keep  it  in  continual  repair,  but 

on   the   contrary,  in   the  month   of ,  18...,  he  suffered 

the  same  to  become  dilapidated  and  broken  down,  and  to  re- 
main in  that  condition  from  that  time  until  the day  of 

,18... 

IV.  That  by  means  thereof  the  plaintiff  suffered  great  damage 
by  the  injury  to  his  lands  and  crops  thereon,  and  his  garden 
and  fruit  trees,  by  cattle  coming  through  said  dilapidated  fence 
from  the  defendant's  land  upon  the  plaintiff's  premises,  and 
that  plaintiff  was  compelled  to  repair  and  rebuild  said  fence,  in 
order  to  protect  his  land  from  the  damage  caused  by  said  cat- 
tle; to  the  damage  of  the  plaintiff dollars. 

[Demand  of  Judgment.] 

§  1296.  Damages  on  Former  Suit. — Where  damages  have 
been  recovered  in  a  former  action  on  the  same  cause,  it  is  proper 
to  allege  that  fact,  and  that  damages  now  sued  for  accrued  since 
the  commencement  of  the  former  action. ^ 

§  1297.  Lessor  against  Lessee,  on  Covenant  to  Keep 
Premises  in  Repair. 

Form  No.  $47. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

1  Bogflrt  V.  Burkhalter,2  Barb.  525.     ages  for  resulting  injury  «nd  fnrnec- 
•  Beckwith  v.  Griswold,   29    Barb,     essary  repairs  conibiued,  see  Beach  v. 
291.    A3  to  the  ri^ht  to  recover  dam-     Craia,  2  Comst.  86. 


§   1300.  COVENANTS.  515 

I.  That  on  the day  of 18...,  by  a  lease  in 

writing  ua  ler  their  h  in  Is  and  seals,  the  plaintiff  leased  to  the 
defendant,  and  the  defen  lant  rented  from  the  plaintiff  for  one 

year  from  said  date,   at  a  monthly  rent  of  ,  a  certain 

dwellin  '-house  in ,  in  the  county  of ,  the 

property  of  the  plain' iff. 

II.  That  said  lease  contained  a  covenant  of  the  part  of  the 
defendant,  of  which  the  following  is  a  copy  [copy  of  the  cove- 
nant], 

in.  That  the  defen  lant  entered  upon  the  premises  and  occupied 
the  same  during  the  siid  term  of  one  year,  under  said  agreement; 
but  that  he  has  failed  to  keep  the  said  house  and  premises  in  good 
repair;  but,  on  the  contrary  [state  injuries  to  premises],  and 
the  house  and  the  premises  otherwise  injured  by  reason  of  the 
neglect  of   the  defen  lant  to  keep  them   in  good  repair,  to  the 

damage  of  the  plaintiff dollars. 

[Demand  of  Judomknt.] 

§  129S.  Assigning  B.'saoh — In  a  declaration  upon  an 
agreement,  by  which  the  lessor  stipulated  to  let  a  farm,  from 
January!,  1820;  to  remove  the  former  tenants ;  and  that  the 
lessor  should  have  the  tenancy  and  occupation  of  the  farm  from 
that  day,  free  from  all  hindrance ;  the  assignment  of  the  breach 
was,  that  although  specially  requested  on  January  1st,  the  de- 
fendant refused  and  neglected  to  turn  out  the  former  tenant,  who 
was  then,  or  had  been,  in  the  possession  and  occupancy  of  the 
land,  and  to  deliver  possession  thereof  to  the  plaintiff.  Such 
allegation  was  held  suffljient.^  To  aver  plaintiff's  readiness  and 
offer,  as  made  on  the  first  day  of  January,  was  sufficient.  They 
need  not  be  averred  to  have  been  made  at  the  last  convenient  hour 
on  the  day.  Nor  need  they  be  averred  to  have  been  made  on  the 
land.a 

§  1299.  Copy  of  Covenant. — The  entire  lease  need  not  be  set 
out,  only  such  covenants  as  relate  to  the  breaches  assigned. ^  But 
where  the  breach  assigned  relates  to  a  violation  of  the  obligation 
arising  out  of  the  relation  of  landlord  and  tenant,  state  the  hiring, 
and  set  out  a  copy  of  the  lease.  The  facts  out  of  which  the  duty 
or  obliixation  arose  ought  to  be  stated.^ 

§  1300.  Covenants  in  Leases,  Interpretation  of. — A  cove- 
nant in  a  lease  to  be  renewed  indefinitely  is  in  effect  the  creation 

'  Cnrroll  v.  Peake,  1  Pdt  18.  way,  14  Barb.  101 ;  Con^r«ve  v.  Mor- 

'  [(1.  gan,  4  Dner,  4i9;  Sevmour  v.  Mad- 

»  Sandford  V.  Hahey,  2  Don.  235.  dox,   l*i  Q.   B.  826;  "S.   C,  71  Eag. 

«  City  of  Buffalo  v.  HolloWriv.  7  N.  Com.  L.  3-J6. 
Y.  49b;  Buflfalo,   City  of,  v/Hollo- 


616  FORMS  OP  COMPLAINTS.  §    1301. 

of  a  perpetuity,  and  is  airainst  the  policy  of  law.^  In  California 
leases  of  agricultural  lands  for  over  lea  years,  where  rent  of 
any  kind  is  reserved,  and  of  city  lots  for  over  twenty  3'ears,  are 
void.*  Where  a  lease  contains  a  covenant  against  assignment, 
and  the  restriction  is  once  removed,  it  operates  as  a  removal 
forever. 3  A  covenant  that  if  the  lessor  shall  sell  or  dispose  of 
the  demised  premises,  the  lessee  is  to  be  entitled  to  the  refusal 
of  the  same,  is  a  covenant  running  with  the  land.'*  A  descrip- 
tion in  a  lease  as  "  a  certain  lot  of  land,  etc.,  together  with  the 
imi)rovement3  thereon,  consisting  of  the  dwelling  known  as  the 
Hotel  de  France,"  is  not  an  implied  guaranty  that  the  hotel 
shall  remain  on  the  lot  during  the  term.^  A  covenant  to  pay 
rent  quarterly  is  not  a  d(!bt  until  it  bfecomes  due ;  for  before  that 
time  the  lessee  may  quit  with  the  consent  of  the  lessor,  or  he 
may  assign  his  term  with  his  consent,  or  he  may  be  evicted  by 
a  title  paramount  to  that  of  the  lessor.^  A  clause  in  a  lease 
exempting  the  tenant  from  liability  to  restore  house  in  case  of 
fire,  does  not  relieve  from  rent  in  case  of  such  destruction.' 

§  1301.  Dainage3  by  the  BleTient3. — Those  acts  are  to  be 
regarded  as  the  acts  of  God  which  do  not  happen  through  human 
agency,  such  as  storms,  lightnings  and  tempests.®  Damages  "  by 
the  elements  "  are  daranges  by  the  act  of  God.^ 

§  1302.  Exceptions  in  Covenant  to  Repair. — In  an  action 
on  a  covenant  in  a  lease  to  repair,  followed  by  an  exception  in  a 
distinct  clause,  the  complaint  need  not  notice  the  exception. ^^ 

§  1303.  Forfeiture. — If  the  landlord,  after  default,  accepts 
the  rent,  he  thereby  waives  the  forfeiture,  and  can  not  after- 
wards insist  upon  it,  and  much  less  can  the  tenant  be  allowed 
to  say  that  he  is  discharged  from  his  covenants  by  his  own  de- 
fault in  the  payment  of  rent.^^  In  relation  to  leases  for  years, 
as  well  as  those  for  life,  the  happening  of  the  cause  of  forfeiture 
only  renders  the  lease  void  as  to  the  lessee.  It  may  be  affirmed 
as  to  the  lessor,  and  then  the  rights  and  obligations  of  both 
parties  continue  without  regard  to  the  forfeiture.^^  The  tenant 
can  not  insist  that  his  own  act  amounted  to  a  forfeiture.  If  he 
could,  the  consequence  would  be,  that  in  every  instance  of  an 
action  on  the  covenant  for  rent,  brought  on  a  covenant  with  a 

»  Morrison  v.  Rogsignol,  5  Gal.  65.  •  Polack  v.  Pioche,  85  Cal.  416. 

>  Civil  Code,  sees,  717,  718,  •  Id. 

•  Chipman  V.  Emeric,  5  Cal.  49.  *"  Trustees  of  New  Csstle  Common 

♦Lrtffan  T.  Najjlee,  9  Cal.  662.  v.  Stevenson,  1  Houst.  (Del.)  451. 

»  BranKer  v.  Manciet,  30  Cal.  624.  »'  Belloc  v.  Davis,  38  Cal.  250. 

«  Wood  V.  Partridge,  11  Mrtss.  488 ;  "Clarke    v.    Jones,     1    Den.    619; 

cited  in  People  v.  Arguello,  37Cal.  524.  Rode  v.  Farr,  6  M.  &  S.  121 ;    Belloc 

'  Beach  v.  Farish,  4  Cal.  839.  v.  Davis,  aupra. 


§  1307.  COVENANTS.  617 

proviso  of  forfeiture  of  non-performance,  the  landlord  would  be 
defeated  by  the  tenant  showing  his  own  default  at  a  prior 
period. 1 

§  1304.  Lease  as  Evidence. — In  California,  leases  for 
more  than  one  year  must  be  in  writing,  but  for  a  less  term  a 
verbal  lease  is  sufficient.^  In  New  York,  the  plaintiff  may  in- 
troduce in  evidence  a  lease  not  under  seal,  to  prove  that  the 
relation  of  landlord  and  tenant  existed,  and  what  was  the  rent 
agreed  upon.^ 

§  1305.  Under-lease. — One  who  takes  an  under-lease  is 
bound  by  all  the  covenants  in  the  original  lease.'*  So  the  sale 
of  spirits  in  bottles  by  a  grocer,  is  a  breach  of  a  covenant  that 
premises  shall  not  be  used  "as  an  inn,  public  house,  or  tap- 
room, or  for  the  sale  of  spirituous  liquors."  ^  An  under-lease 
of  a  whole  term  amounts  to  an  assignment.^ 

§  1 306.  Void  Lease. — A  lease  for  two  years,  executed  by  the 
lessees  and  by  an  agent  of  the  lessors,  but  who  had  no  written 
authority  to  do  so  is  void.'  Where  a  clause  of  renewal  in  a  lease 
discloses  no  certain  basis  for  ascertaining  the  rent  to  be  paid, 
such  clause  is  void  for  uncertainty.®  So  a  covenant  "  to  kt  the 
lessor  have  what  land  he  and  his  brothers  might  want  for  cul- 
tivation," is  void  for  uncertainty.* 

§  1307.  Lessee  against  Lessor,  for  not  Keeping  Prem- 
ises in  Repair. 

Form  No.  S48, 

[TiTLl!  ] 

The  plaintiff  complains,  and  alleges: 

I.  Tliat  on  the  day  of ,  18..,  by  a  lease  made 

between  the  plaintiff  and  the  defendant,  under  their  hands  and 
seals,    the  defendant  leased   to  the  plaintiff,    a-nd   the   plaintiff 

rented  from  the  defendant,  the  premises  known  as  No , 

street,    in  ,   for    months   from    that 

date,  at  the  monthly  rent  of  dollars. 

II.  That  said  lease  contained  a  covenant  on  the  pnrt  of  de- 
fendant, of  which  tlie  following  is  a  copy :  [Copy  of  covenant  to 
keep  in  repair.] 

^  Doe  d«>m.  Bryan  v.  Brinks,  4  T\<\rn.  '  Civil  Code,  sec.  1624. 

&Ald  409;  cited  in  B^lloc  v.  Davis,  *  Williams  v.  Sherman,  7    Wend. 

supra,  referring  also  to  Stuvve-ant  v.  109. 

Davis.  9  Fn\gf',  427  ;  Canfield  v.  VVe*t-  ♦  Feilden  v.  Slater,  L.  R.,  7  Eq.  523. 

colt,  6  Cow.  270;  and  the  distinL-iioa  '  Id. 

drawn  be  ween   these   cases   and  the  •  B-ardman  v.     Wilson,  L.    B.,    4 

CMseol  Hemp  v.  Garland.  4  Q.  B  519;  C.  P   57. 

8Gale«&  Davidson,  402;  46  Ensr.  C.>m.  '  P.lsom  v.  Perrin,  ?CaI.  603. 

L.   519;  see.  also,  vol.  2,   "Landlord  •  Morrison  v.  K()s.*ign,  "   5  C«l  65. 

and  Tenant."  •  Chipman  v.  Emeric,  i.  '^lal.  49. 


618  FORMS  OP  COMPLAINTS.  §  1308. 

III.  That  the  plaintiff  entered  into  possession  of  said  prem- 
ises unler  said  lease,  and  used  the  same  as  a  warehouse  for 
storing  various  articles  of  merchandise. 

IV.  That  the  defend-^nt  has  failed  to  keep  the  premises  in 
repair,  and  has  allowed  [state  neglect  and  special  damage  caused 
thereby],  to  the  damage  of  tlie  plaiatitf dollars. 

[Ukmand  of  Judqmknt  ] 

§  1308,  General  Covenant  to  Repair. — If  the  embank- 
ment of  a  natural  reservoir,  which  is  filled  with  water  by  un- 
usual rain,  is  broken  by  a  stranger,  so  that  the  demised  prem- 
ises are  injured  by  tlie  water,  the  injury  is  not  the  act  of  God  or 
of  the  elements,  and  the  tenant  is  bound  to  repair,  even  if 
damages  by  the  elements  or  acts  of  Providence  are  excepted 
from  his  covenant.^  A  general  covenant  to  repair  is  binding 
upon  the  tenant  under  all  circumstances,  even  if  the  injury  ia 
from  the  act  of  God  or  a  stranger.^ 

§  1309.  Implied  Obligation. — Defendant  entered  upon, 
occupied,  and  paid  rent  for  premises  under  a  demise  for  a  term 
of  years,  made  on  behalf  of  a  corporation,  the  owners,  but  not 
sealed  with  the  corporate  seal.  By  this  agreement  defendant 
undert  ok  to  make  certain  repairs ;  it  was  held  that  he  was 
bound  by  his  stipulation.  He  had  become  tenant  from  year  to 
year,  on  the  terms  of  the  demise  applicable  to  such  tenancy.^ 

§  1310.  Joint  Lsssors. — Where  a  lease  was  made  by  several 
owners  of  a  house,  reserving  rent  to  each  one  in  proportion  to 
bis  interest,  and  there  was  a  covenant  on  the  part  of  the  lessee 
that  he  would  keep  the  premises  in  good  repair,  and  surrender 
them  in  like  repair,  this  covenant  was  joint  as  respects  the  les- 
sors, and  one  of  them  (or  two  representing  one  interest)  can 
not  maintain  an  action  for  the  breach  of  it  by  the  lessees.^ 

§  1311.  Lessee  agaiast  Lessor,  for  not  Completing 
Bailding  according  to  Agreement. 

Form   No.   S49. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of  ,  18...,  at ,the 

plaintiffs,  under  the  firm  name  of  A.  B.  &Co.,  aid  the  defendants, 
under  tiie  firm  name  of  C.  I).  &  Co.,  entered  into  an  agreement  in 
writing,  of  which  agreement  the  following  is  a  copy  [copy  ao-ree- 
meut  to  complete  uutinished  store,  similar  to  adjoining  store], 

1  Polacky.  Pioche,  35  Cal.416. 
«  II. 

•  Ecc^  jiasticRl  CommiRsionerg  V.  Merrsl,  L.  R.,  4  Exch.  162. 

*  Of  *ert  V.  Bradley,  10  How.  (U.  &.)  5b0. 


§   1313.  COVENANTS.  619 

11  That  after  the  making  of  said  agreement,  and  on  the  

day  of  ,  18.,..,  the  defendants  delivered,  and  the  plaint- 
iffs took  possession  of  said  building,  under  and  in  pursuance  of 
said  agreement,  and  upon  the  faith  and  assurance  of  the  defend- 
ants, and  the  full  belief  thereof  that  the  said  premises  were  fin- 
ished in  the  same  manner  as  the  adjoining  store,  and  in  accord- 
ance with  the  terms  of  said  agreement. 

III.  That  the  said  premises  were  not  finished  in  the  snme 
manner  as  the  stoie  adjoining  at  the  time  of  making  such  agree- 
ment, but,  on  the  contrary  [allege  specifically  the  difference]. 

IV".  [Allege   special  damages],  to  the  damage  of  the  plaintiflC 

dollars. 

PDkmanb  of  JuoaMRNT.] 

§  1312.  For  Breach  of  Co i^enant  of  Quiet  Enjoyment 
Against  Landlord. 

Foi-m  No.   S50, 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day   of ,18....,    at ,  the 

defendant,  by  deed  [or  lease  under  seal],  let  to  the  plaintiff, 
and  the  plaintiff  rented  from  the  defendant,  the  house  numbered 

,  street, ,  for  the  term  of  three  years, 

covenanting  that  the  plaiuLilf  should  quietly  enjoy  possession 
thereof  for  the  said  term. 

II.  That  on,  etc.,  one  A.  B.,  who  was  the  lawful  owner  of  the 
said  house,  lawfully  evicted  the  plaintiff  therefrom,  and  still 
witiihoMs  the  possession  thereof  from  him. 

III.  That  the  plaintiff  was  thereby  prevented  from  continuing 
the  business  of  [merchandising]  at  the  said  place,  and  was  com- 
pelled to  expend dollars  in  moving,  and  lost  the  cus- 
tom of  C.  D.,  E.  F.,  and  G.  II.,  and  divers  other  persons,  by 

such  removal. 

[D  KM  AND  OF  Judgment.] 

§  1313.  Covenant  Defined.— The  breach  of  the  covenant 
for  quiet  enjoyment  is  an  actual  disturbance  of  possession  by 
reason  of  some  adverse  right  existing  at  the  time  of  the  making 
the  covenant;^  not  a  tortious  disturbance,  nor  a  lawful  dis- 
turbance by  an  adverse  right  subsequently  acquired.*  Where 
a  lease  contains  an  express  covenant  for  quiet  enjoyment 
"without  molestation  or  disturbance  of  or  from  the  lessor,  his 
successor  or  assigns,"  no  other  or  further   covenant  in   respect 

12  Greonl.  on  Ev.  239.  an  entry  bv  the  Inncllord,   8Pe  Sedg- 
*Grpeiiby  v.  Wilcox,  2  .Tohn«.  1;      wick  v.  HoUeiiback,  7  Johns.  37tj, 

Gratiuis  v.  Clark,  8  Cow,  3ti.    Ad  lo 


-620  FORMS  OP  COMPLAINTS.  §   1314. 

to  enjoyment  will  be  implied.^  Under  the  civil  code  of  Cali- 
fornia a  covenant  for  quiet  enjoyment  against  all  persons  law- 
fully claiming  the  same,  is  implied  in  all  letting  for  hire.^ 

§  1314.  Eviction. — Without  an  eviction  there  is  no  breach 
of  the  covenant  for  quiet  enjoyment;  but  it  is  not  necessary 
that  the  eviction  should  be  by  process  of  law,  consequent  on  a 
judgment. 3  The  covenant  is  broken  whenever  there  has  been 
an  involuntary  loss  of  possession  by  reason  of  the  hostile 
assertion  of  an  irresistible  paramount  title. ^ 

§  1315.  Necessary  Averments. — The  complaint  must 
state  the  particulars  as  to  the  person  or  persons  who  prevented 
him  and  by  what  right,  and  show  a  title  at  or  before  the  date 
of  the  lease  declared  on.^ 

§  1316.  Responsibility  of  Landlords.— Upon  a  covenant  in 
a  lease  for  quiet  enjoyment,  the  lessor  is  responsible  only  for  his 
own  acts  and  those  of  others  claiming  by  title  paramount  to  the 
lease. ^  In  such  a  covenant  no  set  formula  is  required.  Any 
language  which  expresses  the  intent  is  sufficient.' 


CHAPTER  IV. 

EMPLOYMENT. 

§  1317.    For  Breach  of  Contract  to  Employ. 

Form  No.  S51. 

[TCTLB.] 

The  plaintiff  complains,  and  alleges : 

III.  That  on  the day  of ,  18  ....,  at , 

the  plaintiff  and  defendant  mutually  agreed  that  tiie  plaiuiiflt 
ghould  serve  the  defendant  as  [an  accountant],  and  tliat  the 
defendant  should  employ  the  plaintiflf  as  such  for  the  term  of 
[one  year,  or  as  the  case  may  be],  and  pay  him  for  his  sei  vices 
dollars  monthly  [or  as  the  case  may  be]. 

n.  That  on  the day  of ,  18...,  the  plaintiff 

entered  upon  the  service  of  the  defendant  under  said  agiee- 
ment,  and  has  ever  since  been,  and  still  is,  ready  and  willing  to 
continue  in  such  service. 

III.  That  on  the day  of  18..,  the  defend- 
ant wrongfully  discharged  the  plaintiff,  and  refused  to  permit 
him  to   serve   as   aforesaid,    though  the  plaintiff  then  and  there 

*  Burr  V.  Rtenton,43  N.  Y.  462.  *  Grannis  v.  Chirk.  8  Cow.  86. 

'Spc.  1927.  "  Plnyler  V.  (Juiiiiiiigliaiii,    2\    C;\l. 

«  Mctiary  v.  Hastings,  39  OhI.  860.  229. 

•id.  ^Levilzky  V.  CHtining,  33  Cal.   2l;9. 


§  1321.  EMPLOYMENT.  521 

offered  to   continue  in  said  service,  and  perform  said  agreement 
on  his  part,  to  the  damage  of  the  plaintiff dollars. 

[DjtMAND  OF  JUDGMKNT.] 

§  1318.  Discharge  of  Employee. — "Where  no  definite 
period  of  employment  is  agreed  upon  between  master  and 
servant,  the  master  has  a  riglit  to  discharge  the  servant  at  any 
time,  and  to  eject  him  by  force  if  he  refuses  to  leave  after  re- 
ceiving notice  to  that  effect,  but  no  more  force  than  is  neces- 
sary ^  But  where  a  contract  for  services  is  made  for  a  fixed 
period,  if  the  employer  discharge  the  servant  without  good 
cause,  the  servant  may  recover  the  stipulated  wages.* 

§  1319.  Entire  Contract. — A  distinction  exists  between 
contracts  for  specific  work  and  contracts  for  the  hire  of  clerks, 
agents,  laborers,  domestic  servants,  etc.,  for  a  specified  period. 
In  the  latter,  if  the  person  employed  is  improperly  dismissed 
before  the  term  of  service  has  expired,  he  is  entitled  to  recover 
for  the  whole  term,  unless  the  defendant  can  show,  by  way  of 
defense,  that  the  plaintiff  was  actually  engaged  in  other  profit. 
able  service  during  the  term,  or  that  such  employment  was 
offered  to  him  and  rejected. ^  A  contract  to  grade  a  section  of 
a  railroad  is  an  entire  contract,  and  a  condition  in  it  for  pay- 
ments from  time  to  time,  as  the  work  progresses,  docs  not  make 
it  severable.*  If  the  contractor,  in  such  case,  is  preventid  by 
his  employer  from  completing  his  whole  contract,  he  is  justified 
in  abandoning  it,  and  may  recover  a  fair  compensation  for  the 
work  performed.* 

§  1320.  Measure  of  Damages. — The  increase  of  damages 
is  not  the  entire  contract  price,  but  a  just  recompense  for  the 
actual  injury  which  the  party  has  sustained.'' 

§  1321.  OSer  to  Perform. — The  rejection  of  the  offer  to 
perform  services  excuses  the  performance  as  a  condiiion  piece- 
dent,  but  does  not  release  the  plaintiff  from  the  obligation  to 
perform  so  long  as  he  insists  upon  the  agreement.'''  When  the 
plaintiff  has  been  wrongfully  discharged,  this  averment,  coupled 
with  an  allegation  of  readiness  to  serve,  is  all  that  is  necessary. 
He  need  not  aver  an  offer  to  serve.^  For  if  any  one  is  bound  to 
do  a  thing,  he  must  either  do  it  or  offer  to  do  it,  and  if  no  ob- 
jections are  made,  he  must  show  that  he  made   a  tender  in  a 

>  De  Rrinr  v.  Minturn,  1  Cal.  4f)0.  »Cox  v.  Western  Pacific  R.  R.  Co., 

«  Wi-bsler  v.  W«de,  19  C«l.  291.  47  Cal.  87. 

SCMStigin  V.    Mohawk   «Sk  Hudson  'Clark  v.  MHrsiglia,  1  Den.  317. 

River  R  K  Co.,  2  Den.  609;  2  Greenl.  ">  (.^ooppr  v.  Pena,  21  CmI  Am 

Ev.  273;  8PC.  261   a.  *  Wallis  v.  Warren,  4  Exth.  364;  7 

*  Cox  V.  W.  P.  R.  R.  Co.,  47  Cal.  87.  Dowl.  &  L.  60. 


522  FORMS  OF  COMPLAINTS.  §   1322. 

regular  manner ;  but  this  is  not  necessary  if  the  other  party  by 
bis  conduct  dispenses  with  a  tender,  as  by  a  previous  refusal  to 
accept.^ 

§  1322.  Rescission  of  Contract. — If  the  servant  willfully 
desert  the  employer's  service,  the  employer  is  not  bound  to  re- 
ceive him  again,  and  he  can  not  recover  for  past  services.' 
Plaintiff  agreed  to  work  seven  months  for  defendant,  at  ten  dol- 
lai  s  per  month,  unless  one  or  the  other  should  become  dissatis- 
fied. He  worked  six  months  and  a  half,  and  left,  alleging  that  he 
had  business  to  attend  to:  Held,  that  lie  could  not  recover. ^ 

§  1323,  The  Same— Where  the  Employment  Mover 
took  Effect. 

Foi-m  No.  S5S, 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  [As  in  last  form.] 

II.  That  on  the day  of ,  18  ..,  at    , 

the  plaintiff  offered  to  enter  upon  the  service  of  the  defendant, 
and  has  ever  since  been  ready  and  willing  so  to  do. 

III.  That  the  defendant  refused  to  permit  the  plaintiff  to  enter 
upon  such  services,  or  to  pay  him  for  his  services,  to  the  damage 
of  the  plaintiff dollars. 

[Dkmand  of  Judgmwnt.] 

§  1324.    For  Breach  of  Contract  to  Serve. 

Form  No.  S5S. 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of ,  18....,  at  ,  the 

plaintiff  and  defendant  mutually  agreed  that  the  plaintiff  should 

employ  the  defendant  at    [a  monthly]  compensation  of 

d' (liars',  and  that  the  defendant  should  serve  the  plaintiff  [as  book- 
keeper] for  the  term  of  [one  year]. 

II.  That  the  plaintiff  has  always  been  ready  and  willing  to  per- 
form his  partof  the  said  agieement  [and  on  the day  of , 

18...,  offered  so  to  do]. 

III.  That  the  defemlant  refused  to  serve  the  plaintiff  as  afore- 
said, to  his  damage dollars. 

[Dkmand  of  Juuomknt] 

§  1325.  Age  of  Apprentice  — The  master  of  an  apprentice 
is  concluded  by  the  recital  in  the  indentures  of  the  age  of  the 
boy.*    And  a  stranger  to  the  indentures  can  not  take  advantage 

1  Bliuht  V.  Aslilpy,    Pet.  C.   Ct.  15.  «  Mnnell  v.  Burns,  4  D<'n.  121. 

2  K;iX(.ii  V.  M.ihsHi'Id.  2  Muss.  147;  *  McCutchia  v.  .I.iinieson,  1  Cranch 
LatiU7  V.  Turks,  8  CuW.  t)3.                         C.  Cu   3J8. 


§  1331.  EMPLOYMENT.  523 

of  the  omission  to  insert  the  age  of  the  apprentice  in  the  inden- 
turrs.^ 

§  1326.  Assignment  of  Indentures. — A  master  can  not 
assign  the  indentures  of  an  apprentice.^  And  therefore  a  note 
g  ven  for  such  nn  assignment,  being  based  upon  a  void  contract, 
can  not  be  recovered. ^ 

§  1327.  Apprentice's  W?.ges. — The  mnster  is  entitled  to 
his  ai^prentioe's  wages  when  hired  by  another,  whether  tiie  per- 
son hiring  knew  or  not  that  lie  was  an  apprentice.*  The  right 
of  the  master  to  the  earnino-s  of  the  apprentice,  in  the  way  of 
his  business,  or  of  any  other  business  which  is  substituted  for  it, 
does  not  extend  to  his  extraordinary  earnings,  which  do  not 
interfere  with  tlie  proflt  wiuch  the  master  may  legitimately  de- 
rive from  his  services.* 
§  1328.  By  theMaster,  against  the  Father  of  Apprentice. 

jTlTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  tlie  day  of    18...,  at ,  one  A. 

B.,  with  the  consent  of  the  defendant,  made  an  indenture  under 
his  hand  and  seal,  a  copy  of  wliich  is  hereto  annexed. 

II.  That  at  the  same  time  and  place,  the  defendant  entered 
into  an  agreement,  under  his  hand  and  seal,  a  copy  of  which  is 
also  hereto  annexed  [or  state  the  tenor  of  these  covenants]. 

III.  That  on  the day  of ,   18...,  the  said    A.  B. 

willfully  absented  himself  from  the  service  of  the  plaintiff,  and 
continues  so  to  do,  to  his  damage dollais. 

[Dkmand  of  Judgment.] 
[Annex  copy  of  indenture  ] 

§  1329.  Breach,  how  Alleged. — The  allegation  that  the 
defendant  had  not  used  any  endeavors  to  have  the  apprentice 
serve,  and  refused  to  do  anything,  sufficiently  showed  a  breach.* 

§  1330.  Covenants. — The  usual  covenants  in  an  appren- 
tice's indenture  are  independent,  and  the  plaintiff  need  not 
aver  performance  on  his  part.' 

§  1331.  Liability  of  Parent.— -That  the  father  of  an 
apprentice  may  be  held  liable  upon  the  indenture,  by  reason 
of  his  signature  and  seal,  although  there  are  no  express  words 

1  Heinpcke  V.  Rawlings,   4  Cranch  Munsey  v.    Goodwin,   3  N.  H.    272; 

C.  CU  099.  ConHnt  v.  Rnvm-nd,  2  Aik.  243. 

«  Handy  V.  Brown,   1  Cranch  C.  Ct.  *  Mason     v.    The     "  Blaireau,"    2 

610.  Cranch,  240. 

»  Walker  v.  Johnson,  2  Cranch  C.  *  Van  Dorn  v.  TounEc,  13  Barb.  286. 

Ct.  20  .  T  Phillips  Y.  Clitt,  4  Hurl.  &  i^or. 

*  James  V.  Le  Boy,  6  Johns.  274;  167. 


624  FORMS  OF  COMPLAINTa  §   1332. 

of  covenant  binding  him.^  If  a  son  remains  with  and  per- 
forms services  for  his  father  after  attaining  his  majority,  the 
law  will  not,  ordinarily,  imply  a  promise  on  the  part  of  the 
father  to  pay  for  his  labor ;  but  if  the  circumstances  show  that 
the  expectation  of  both  parties  was  that  he  should  be  com- 
pensated, the  promise  will  be  implied,  and  he  may  recover  a 
quantum  meruit.^ 
§  1332.    By  the  Apprentice,  against  the  Master. 

Form  No.  365, 
[TrTLB  ] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at , 

the  defendant  entered  into  an  agreement  with  the  plaintiff,  and 
his  father  Benjamin  Rider,  under  his  and  their  hands  and  seals,  a 
copy  of  which  is  hereto  annexed. 

II.  That  the   defendant   has  not  [instructed  the   plaintiff  in 

the  business  of ,  or  slate  any  other  breach],  to  bis 

damage dollars. 

[Demand  of  JtJDQMKNT.] 

§  1333.  Rig'ht  of  Action. — An  apprentice  may  sue  a  master 
for  not  teaching  him  his  trade,  although  no  indentures  were 
executed,  the  master  having  taken  him  under  an  order  of  the 
court.  3 

§  1334.  For  Breach  of  Contract  to  Manufacture  Goods. 

Form  Ao.  356. 
[TiTLB  ] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the day  of ,  18...,  at ,  the 

defendant  promised  and  agreed  with  the  plaintiff  to  manufacture 
and  deliver  to  the  plaintiff  400  dozen  woolen  hose,  at  the  price 

of dollars  for  each  dozen,  for  which  the  plaintiff  agreed 

to  pay  the  defendant dollars. 

II.  Tliat  the  plaintiff  duly  performed  all  the  conditions  of  said 
agreement  on  his  part. 

III.  The  defendant  did  manufacture  said  hose  under  said 
agreement,  but  manufactured  them  in  an  unskillful  and  unwork- 
manlike  mauner,  to   the   damage   of  the   plaintiff 

dollars. 

[Demand  of  Judgmint.] 

§  1335.    For  Refusing  to  Accept  Manufactured  Goods. 

Form  No.  357. 
[Title.] 

I.  That  on  the day  of 18...,  at ,  the 

*  Wood  row  V.  Coleman,  1  Cranch  'Friprmuth  v.  Friprmuth.  4fiCHl.42. 
C.  Ct.  171.  »  Adams  v.  Miller,  1  Crauch  C.  t;t.  6. 


§  1336.  EMPLOYMENT.  525 

defendant  contracted  with  the  plaintiff  to  make  for  him  [describe 
what],  and  agreed  to  pay  for  the  same,  upon  delivery  tliereof, 
dollars. 

II.  That  the  plaintiff  made  the  said  goods,  and  on  the 

day  of ,  18...,  offered  to  deliver  the  same  to  the 

defendant,  and  has  ever  since  been  ready  and  willing  to  deliver 
them,  and  has  otiierwise  duly  performed  all  the  conditions  of 
said  contract  on  his  part. 

III.  That  the  defendant  has  not  accepted  or  paid  for  the 
same. 

[DkMAND  OJ"  .TtmOMENT.] 

[Copy  of  Contract.] 

§  1336.  On  a  Promise  to  Manufacture  Kaw  Material 
into  Merchantable  Goods. 

Form  No.  S58. 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  ...  day  of  ,  18...,  at , 

the   plaintiff  delivered  to  the   defendant [sides  of 

leather],  of  the  value  of dollars,  to  be  manufactured 

into  [harness],  for  a  reasonable  compensation,  to  be  paid  to  the 
defendant  by  the  plaintiff. 

II.  That  the  defendant,  in  consideration  thereof,  undertook  to 
manufacture  the  said  [harness],  or  cause  it  to  be  manufactured 
from  the  [leather],  and  to  deliver  the  same  to  the  plaintiff 
when  so  manufactured. 

III.  That  the  said  [leather]  was  so  manufactured  into  [har- 
ness] by  the  defendant  before  the day  of  ,  18..., 

on  which  day  the  plaintiff  demanded  the  same  of  the  defendant, 
and  then  and  there  offered  to  pay  him  a  reasonable  compensation 
for  manufacturing  the  same. 

[Or,  III.  That  the  defendant  did  not  manufacture  said 
(leather)  into  (harness),  although  a  reasonable  time  therefor 
elapsed  before  this  action.] 

IV.  That  the  defendant,  then  and  ever  since,  refused  and 
neglected  to  deliver  the  same,  and  has  converted  them  to  his 
own  use. 

[Or,  IV.  That  the  defendant  manufactured  said  (leather)  in 

such  a  negligent  .and  unskillful  manner,  that  the  said  (harness) 

was  of  no  value.J 

[DaMAND  or  Judgment,] 


626  FOnilS  OF  CO^JPLAINTS.  §   1^37. 


CHAPTER  V. 

INDEMNITY. 

§  1337.  By  Retiring  Partner,  on  the  Remaining  Part- 
ner's Fx'Oinise  to  Indemnify  Him  against  Damage. 

Form  No.  S59. 

[TlTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18....  at ,  the 

plaintiff  and  defendant,  being  partners  in  trade  under  the  firm 
name  of  A.  «&;  B,,  dissolved  the  said  partnership,  and  mutually 
agreed  that  the  defendant  should  take  and  keep  all  the  partner- 
ship property,  pay  all  debts  of  the  firm,  and  indemnify  the 
plaintiff  against  all  claims  that  might  be  made  upon  him,  on 
account  of  any  indebtedness  of  the  said  firm. 

II.  That  the  plaintiff  duly  performed  all  the  conditions  of  the 
said  agreement  on  his  part. 

III.  That  on  the day  of ,  18....,  a  juf^gment  was 

recovered  against  the  plaintiff  and  defendant  by  one  John  Doe, 

in  the  court  of  this  state,  upon  a  debt  due  from  the 

said  firm  to  the  said   Doe,  and  on  the  day  of , 

18...,  the  plaintiff  paid dollars   in  satisfaction  of   the 

same. 

IV.  That  the  defendant  has  not  paid  the  same  to  the  plaintiff, 

nor  any  part  thereof. 

[Dbmand  op  .Tudomrnt.] 

§  1338.  Definition. — Indemnity  is  a  contract  by  which  one 
engages  to  save  another  from  a  legal  consequence  of  the  conduct 
of  one  of  the  parties,  or  of  some  other  person. ^ 

§  1339.  Essential  Averments — Damage— Demand. — In 
actions  upon  an  ordinary  contract  to  indemnify  against  \  ss  or 
damage,  the  plaintiff  must  aver  actual  damage;  and  if  he  has 
paid  under  a  judgment  this  should  be  stated,  with  the  date  of 
the  judgment,  the  court  in  which  it  was  rendered,  and  the 
amount  of  the  judgment;  while  on  an  agreement  to  save  from 
liability,  actual  damage  need  not  be  averred  ;2  but  consequential 
damages  must  be  specially  alleged.'  Thus  in  an  action  on  a  bond 
of  indemnity,  the  plaintiff  must  set  out  wherein  he  has  been 
damnified.     A  general    averment  of    loss   is  insuflftcient.'*    But 

»  Cal.  Civil  Code,  sec.  2772.  2  Johns.  Cas.  52 ;  Holmes  v.  Weed, 

«  McGoe  v.  Roen,  4  Ahb.  Pr.  8.  19  Bnrb.  128. 
'Swan's  PI.  381.    For  allegations        *  Cue  v.  Kankin,  6  McLean,  364. 
in  such  actions,  see  Allarev.  Ouland, 


§  1342.  INDEMNITY.  627 

■where  defendant  agreed  to  indemnify  the  plaintiff  against  loss 
on  a  sale  of  stock,  on  demand,  an  action  for  the  deficiency  may 
be  maintained  at  any  time  after  the  sale,  without  a  previous  de- 
mand.^ So,  also,  in  an  action  on  a  bond  to  indemnify  the  plaint- 
i£E  against  damages  he  might  sustain  by  the  levy  of  an  attach- 
ment, the  plaintiff  alleged  the  recovery  of  a  judgment  against 
plaintiff  for  damages  against  which  he  was  indemnified,  and  the 
payment  of  said  judgment.  The  averment  of  payment  was  ma- 
terial to  plaintiff's  right  to  recover  for  the  amount  of  such  judg- 
ment."^ The  averment  that  the  plaintiff  necessarily  incurred  ex- 
penses, is  equivalent  to  the  allegation  that  he  incurred  necessary 
expenses. 3  And  the  complaint  must  show  how  and  in  what  man- 
ner these  necessary  expenses  were  incurred,  naming  the  court  in 
the  allegation.^  But  tiie  failure  to  make  such  an  averment  is 
not  fatal ;  it  is  at  most  but  an  iiTegularity.^ 

§  1340.  Attachment — "Re  ease  from. — Recovery  may  be 
had  on  a  bond  given  to  a  sheriff,  to  release  property  from  attach- 
ment, to  the  extent  of  the  penalty.^  Such  bond  is  not  a  statutory 
undertaking,  and  is  valid  at  common  law.  Execution  against 
the  judgment  debtor  is  not  a  condition  precedent  to  suit  on  the 
bond,  and  any  mistake  in  the  recital  as  to  the  amount  for  which 
attachment  issued  may  be  explained  and  corrected  by  parol.' 
It  takes  effect  at  the  time  of  its  delivery.*  Such  a  bond  is  for 
the  benefit  of  the  plaintiff  who  may  sue  upon  it,  and  if  the 
sheriff  takes  a  sufficient  statutory  undertaking,  he  has  no  further 
responsibility.*  The  bond  given  to  release  property  attached, 
only  releases  it  from  the  custody  of  the  sheriff,  and  is  not  an 
actual  substitution  of  security,  compelling  the  plaintiff  to  pro- 
ceed upon  the  bond  alone  to  collect  his  payment.^"  An  indem- 
nity bond  to  the  sheriff  to  retain  property  seized  under  attach- 
ment, is  an  instrument  necessary  to  carry  the  power  to  sue  into 
effect." 

§  1341.  Administrator's  Bond. — ^Where  an  administrator 
makes  premature  payment  of  a  claim,  and  takes  a  bond  of  in- 
demnity, such  a  bond  would  be  held  legal  and  binding.^ 

§  1342.  Execution.  Seisure  under. — An  agreement  to  in- 
demnify'- a  sheriff  for  seizing  property  under  execution  is  valid,  if 
the  parties  are  in  good  faith  seeking  to  enforce  a  legal  right.  ^^ 

»  HHlleckv.  Mo99,  22  Cal.  26fi.  •  Buffpndeau  v.  Broolcs,  28  CbI.  641. 

'  R..u8sin  V,  Stewart,  3:i  Cal.  -203.  »  Curiae  v.  I'acknrd.  2«  ChI.  194. 

«  Glover  v.  Tut-k,  1  Hill,  fi6.  l"  Low  v.  Adams,  6  Cal.  277. 

*Patir.n  V.  Fonle,  1  Wend.  207.  "  Davidson  v.  Dallas,  8  Cal. 227. 

»  Packard  v.  Hill,  7  Cow.  434  ^  Comstock  v.  Breed.  12  ChI.  289t 

•  I'h  :.  er  V.  Vimce,  13  Cal.  6r.3.  ^  giark  v.  Kaney,  18  Cal.  622 

*  Faltuttr  V.  Yauce.  I'd  CaL  &6J. 


528  FORMS  OF  COMPLAINTS.  §   1343. 

§  1343.  Conditions  Precedent. — If  the  obllorors  unrlertnke 
to  indemnify  the  sheriff  for  any  damage  by  reason  of  any  costs, 
suits,  jiidginents,  and  executions  that  shall  come  or  be  brouijht 
sgaiiist  him,  the  sheriff  can  not  maintain  an  action  on  the  bond 
because  judgment  has  been  rendered  airainst  him,  but  must  first 
pay  the  judgment.^  If  the  sheriff  is  indemnified  for  the  act  alone, 
and  suit  is  brought  against  him  and  judgment  recovered,  the 
sheriff  can  not  afterwards  have  judgment  on  the  indemnity  bond 
against  the  sureties  upon  five  daj's'  notice  unless  he  gave  the 
sureties  written  notice  of  the  action  brought  against  him.^ 

§  1344.  Interpretation. — In  the  interpretation  of  a  con- 
tract of  indemnity  the  following  rules  are  to  be  applied,  unless 
a  contrary  intention  appears:  1.  Upon  an  Indemnity  against 
liability  expressly,  or  in  other  equivalent  terms,  the  person 
indemnified  is  entitled  to  recover  upon  becoming  liable;  2. 
Upon  an  indemnity  against  claims,  or  demands,  or  damages,  or 
costs,  expressly,  or  in  other  equivalent  terms,  the  person  in- 
demnified is  not  entitled  to  recover  without  payment  thereof; 
3.  An  indemnity  against  claims  or  demands,  or  liability,  ex- 
pressly, or  in  other  equivalent  terms,  embraces  the  costs  of 
defense  against  such  claims,  demands,  or  liability  incurred  m 
good  faith,  and  in  the  exercise  of  a  reasonable  discretion ;  4. 
The  person  indemnifying  is  bound,  on  request  of  the  person 
indemnified,  to  defend  actions  or  proceedings  brought  against 
the  latter  in  respect  to  the  matters  embraced  by  the  indemnity, 
but  the  person  indemnified  has  the  right  to  conduct  such  de- 
fense if  he  chooses  to  do  so ;  5.  If,  after  request,  the  person 
indemnifying  neglects  to  defend  the  person  indemnified,  a 
recovery  against  the  latter,  suffered  by  him  in  good  faith,  is 
conclusive  iu  his  favor  against  the  former;  6.  If  the  person  in- 
demnifying, whether  he  is  a  principal  or  surety  in  the  agree- 
ment, has  not  reasonable  notice  of  the  action  or  proceeding 
against  the  person  indemnified,  or  is  not  allowed  to  control  its 
defense,  judgment  against  the  latter  is  only  presumptive  evi- 
dence against  the  former;  7.  A  stipulation  that  a  judgment 
against  the  person  indemnified  shall  be  conclusive  upon  the 
person  indemnifying,  is  inapplicable  if  he  had  a  good  defense 
upon  the  merits,  which  by  want  of  ordinary  care  he  failed  to 
establish  in  the  action. ^  An  indemnity  against  the  acts  of  a 
certain  person  applies  also  to  those  of  his  ageut.^ 

*  Lott  V.  Mitf^hell.  82  Cal.  23.  *  Oalifornia  Civil  Code,   sec.   2775. 

•  Dennis  V.   Packiird,   28    Cal.  101 J      See   also,    ub  to   contracts  ot"  indem- 
8i  e  o'lnlc  C.  P.,  st'c.  1055.  nity  nnd  rii'es  in  reference  thereto, 

»  Caliroruia  Civil  Code,  sec.  2778.        Theobnld'a   Principal    and    burety; 


§  1348.  INDEMNITY.  529 

§  1345.  Injtin(^tion. — A  bond  of  indemnity,  executed  in  pur- 
siumce  of  articles  of  agreement,  may  in  equity  be  restrained  so 
as  to  conform  to  tliose  articles.  But  a  departure  from  the  articles 
must  be  clearly  shown. i  Thus,  under  an  agreement  to  indem- 
nify a  retiring  partner  against  demand  upon  the  concern,  and  a 
bond  of  indemnity  reciting  that  it  was  agreed  to  indemnify 
against  debts,  including  those  due  from  others  which  had  been 
assumed,  it  was  held,  that  the  bond  might  be  enforced.^ 

§  1346.  Joint  and  Several  Liability. — One  who  indem- 
nifies another  against  an  act  to  be  done  by  the  latter,  is  liable 
jointly  with  the  person  indemnified,  and  separately  to  every 
person  injured  by  such  act.^ 

§  1347.  Liability  of  Sareties. — ^Where  the  sheriff,  under  a 
writ  of  attachment,  is  about  to  levy  upon  the  property  of  a  firm, 
and  a  bond  is  executed  by  third  parties  as  sureties,  conditioned 
to  keep  harmless  and  indemnify  the  sheriff  against  all  damages 
and  expense  he  may  be  put  to  by  reason  of  the  non-seizure  of 
the  property,  and  "  to  pay  whatever  judgment  may  be  rendered 
against  said  defendants;"  and  judgment  was  obtained  against 
one  only  of  the  defendants — plaintiffs  failing  on  the  trial  to 
prove  the  other  to  be  a  partner — the  sureties  are  liable  on  the 
bond  for  the  amount  of  the  judgment;  that  the  bond,  though 
not  strictly  an  undertaking  under  the  statute,  conforms  sub- 
stantially to  its  requirements,  and  must  be  read  by  the  light  of 
the  statute,  and  interpreted  according  to  the  intention  of  the 
parties.'*  Such  bond  will  be  presumed  to  have  been  executed 
with  reference  to  the  provisions  of  the  statute :  and  will  be  held 
such  a  security,  and  the  fact  that  judgment  was  obtained  against 
one  only  of  the  defendants,  satisfies  the  condition  to  "  pay 
whatever  judgment  may  be  rendered  against  said  defend- 
ants."^ 

§  1348.  Liability,  Discbarge  from. — Whenever  the  liabil- 
ity of  the  sureties  is  fixed  by  the  rendition  of  a  judgnieut  in 
favor  of  the  plaintiff,  the  sureties  have  a  right  to  tender  the 
pliaintiff  the  full  amount  of  the  judgment,  and  if  he  refuses  to 
receive  the  same,  the  sureties  are  discharged  from  their  obliga- 
tion on  the  undertaking.^  Such  tender  is  equivalent  to  payment 
or  release  by  said  plaintiff.  The  sureties  are  likewise  discharged 
where  the  principal  tenders  to   the  plaintiff  the  full  amount  of 

Chitty  ,  Jr.,  Cont.,  5th  Am.  ed.,   56;  «  Finley  v.  Lynn,  6  Cranch,  238. 

Stone  V.  Hooker.  9  Cow.  154;   Whit-  •  Jal.  Civil  Code.  sec.  2777. 

aker  v.   Smith,  4  Pick.    83 ;    Chune,  *  Heyneniann  v.  Eder,  17  Cal.  433. 

Adm'retc,  v.  Hinman,  8  Wend.  452.  '  Id. 

1  Finley  v.  Lyim,  6  Cranch,  238.  •  Hayes  v.  Josephi,  26  Cal.  RAK 
Ebtkb,  Vol.  1—34. 


530  FORMS  OF  COMPLAINTS.  §   1349. 

his  debt  and  costs,  and  the  plaintiff  refuses  to  receive  the  ten- 
der.^ 

§  1349.  Notice  to  Sureties. — If  an  action  be  brouf^ht 
against  a  sheriff  for  an  act  done  by  virtue  of  his  office,  and  he 
give  written  notice  thereof  to  the  sureties  on  his  bond  of  in- 
demnity received  by  him,  the  judgment  recovered  therein  shall 
be  conclusive  evidence  of  his  right  to  recover  against  such  sure- 
ties; and  the  court  or  judge  in  vacation  may,  on  motion,  upon 
notice  of  five  days,  order  judgment  to  be  entered  up  against 
them  for  the  amount  so  recovered,  including  costs. ^  The  pro- 
vision of  the  practice  act  is  founded  upon  the  principle  that  the 
action,  under  such  circumstances,  is  in  substance  against  the 
indemnifler,  the  real  party  in  interest,  and  that  he  has  in  that 
action  an  opportunity  to  make  any  defense  that  may  exist.^ 
Where,  therefore,  the  indemnifler  has  been  so  notified,  he  can 
not  maintain  a  bill  in  equity  to  set  aside  the  judgment  obtained 
therein,  except  under  such  conditions  as  would  have  enabled 
him  to  maintain  it,  had  he  been  the  nominal  as  well  as  real 
party  defendant  to  the  first  action.* 

§  1350.  Remedy. — When  an  indemnity  bond  is  given  to  a 
sheriff  to  hold  him  harmless,  his  remedy  at  law  on  the  bond  is 
clear  for  the  amount  of  any  such  judgment,  whether  he  be 
solvent  or  not,  or  whether  his  official  sureties  could  be  held  or 
not.  5 

§  1351.  Sale  under  Execution. — A  bond  given  to  a  sheriff 
to  indemnify  him  for  any  loss  or  damage  he  may  sustain  by  sell- 
ing property  levied  on  by  him,  by  virtue  of  an  execution,  in 
violation  of  an  order  enjoining  its  sale,  is  void,  because  an  un- 
lawful contract.* 

§  1352.  Trespass. — An  agreement  to  indemnify  a  party  for 
a  willful  trespass  about  to  be  committed,  is  void,  as  against 
public  policy."' 

§  1353.  Void  Contract. — ^An  agreement  to  indemnify  a  per- 
son against  an  act  thereafter  to  be  done,  is  void,  if  the  act  be 
known  by  such  person,  at  the  time  of  doing  it,  to  be  unlawful.* 
But  an  agreement  to  indemnify  against  an  act  already  done,  is 
vahd,  even  though  the  act  was  known  to  be  wrongful,  unless  it 
was  a  felony.* 

»  Curiae  V.Packard,  29  Cal.  194.  «  Buffendeau  v.   Brooks,    28    Cal. 

•California    Code  Civ.    Proc,  sec  641. 
1055.  T  Stark  v,  Raney,  18  Cal.  622. 

«  Dutil  V.  Pacheco,  21  Cal.  438.  "  Civil  Code.  sec.  2773. 

«  Id.  •  Id.,  sec.  2774. 

•  White  V.  Fratt,  13  Cal.  621. 


§  1H54.  INUEMNITY.  531 

§  1354.  Aeainst  Sureties  in  Partner's  Bond  of  Indemnity 
agaxiiht  Liability. 

Form  No.  S60, 

[TlTLIC.] 

Tiie  plaintiff  complains,  and  alleges: 

I.  Tliat   on   the day   of ,    18..,  the  plaintiff 

and  one  A.  B.  were  copartners  in  business  as  merchants,  in  the 
city  of ,  under  the  firm  name  of  A.  B.  &  Co.,  and  there- 
after on  the  same  day  they  dissolved  their  connection  as  such 
copartners,  and  thereupon  entered  into  an  agreement  in  writing, 
of  said  date,  duly  executed  and  signed  by  them  respectively, 
whereby  it  was,  among  other  tilings,  mutually  agreed  that  the 
said  A.  B.  should  retain  and  keep  to  his  sole  and  separate  use 
all  and  singular  the  partnership  property  of  every  name  and 
character,  whether  in  action  or  possession,  and  wheresoever 
situated ;  and  in  consideration  thereof,  that  he  should  pay  and 
discharge  the  debts  so  due  by  the  said  firm,  to  the  extent  of 

dollars,  from  his  own  individual  resources,   and  to  the 

like  extent  hold  the  plaintiff  harmless  and  indemnified,  of  and 
from  and  by  reason  of  any  and  all  claims  or  liabilities  due  by 
said  firm,  a  copy  of  which  agreement  is  hereto  annexed  as  a 
part  of  this  compaint,  marked  "  Exhibit  A." 

II.  That  the  defendants,  in  consideration  of  said  agreement 
between  said  A.  B.  and  the  plaintiff,  and  of  one  dollar  to  each 
of  them  then  paid  by  the  plaintiff,  entered  into  an  agreement 
executed  and  signed  by  them  respectively,  a  copy  whereof  is 
annexed  hereto  as  a  part  of  this  complaint,  and  marked  "  Ex- 
hibit B,"  whereby  they  severally  undertook  and  bound  them- 
sehes  to  the  plaintiff,  for  the  faithful  performance  by  the  said 
A.  B.  of  the  covenants  in  said  agreement,  to  be  kept  and  per- 
formed on  said  A.  B.'s  part. 

III.  That  said  A.  B.,  under  his  said  agreement  with  the 
plaintiff,  retained  and  kept  to  his  sole  and  separate  use  all  the 
partnership  property  of  the  firm ;  but  has  not,  pursuant  thereto, 
paid  and  discharged  the  debts  due  by  said  firm  to  the  extent 
aforesaid ;  and  has  failed  to  hold  this  plaintiff  harmless  and  in- 
demnified to  the  like  extent,  of  and  from  and  by  reason  of  any 
claims  or  liabilities  due  by  the  said  firm. 

IV.  That  at  the  time  of  the  dissolution  of  the  partnership, 
and  of  the  making  of  the  agreement  aforesaid,  the  said  firm  was 

indebted  to  firm   of  R.    &  Co.,  of ,  for  merchandise 

sold  and  delivered,  in  the  sum  of dollars,   which  was 

then  due  and  payable;  wiich  indebtedness  formed  a  pan  of  the 
dollars,   debts  of  A.   B.  dc  Co.,    aad  was  included 


632  FORMS  OP  COMPLAINTS.  §    1355. 

amon^  such  debts,  to  he  paid  by  the  snid  A.  B.,  under  his 
agreement  aforesaid  with  the  plaintiff;  luit  the  said  A.  B.,  al- 
though requested,  would  nut  pay  R  &  Co.  their  said  demand 
or  any  part  thereof. 

V.  That  on  the  day  of  last,  an  action  was  com- 
menced by  the  plaintiff  in  tiie  [state  the  court],  to  recover  upon 
and  by  virtue  of  the  aforesa'd  aG^reement,  from  the  said  A.  B., 
the   said  amount,  with   interest,  then  due  by  the  said  A.  B.    & 

Co.  to  the  said  firm  of  R.  &  Co.,  amounting  to  dollars, 

and  interest  thereon;  and  such  proceeilin^s  were  thereupon 
had  that  on  the  day  of  ,  18....,  judgment  was  ren- 
dered in  such  action  in   favor  of  the  plaintiff  against  the   said 

A.  B.  for  the  sum  of  dollars,   including  costs;  upon 

which  judgment  execution  was  at  once  issued  against  the  said 
A.  B.  and  returned  wholly  unsatisfied. 

VI.  That  the   plaintiff  has  paid   dollars,   the    amount 

of  said  judgment,  and  otlier  necessary  costs,  disbursements, 
and  attorney's  fees  therein,  amounting  to dollars. 

VIE.  That  he  has  demandeil   fram  the  defendants  payment   of 
the  said  amounts,  but  they  have  not  paid  the  same. 
[Dkmand  of  Judgment.] 
[A.nnex  copies  of  agreemmits,  marked  Exhibits  "  A"  and  "  B."] 

§  1355.  Notice  of  Dsbt. — That  the  defendants  had  notice 
of  the  debt  need  not  be  alleged,  as  it  is  matter  which  lies  prop- 
erly in  the  knowledge  of  the  defendant,  especially  if  it  is 
averred  that  the  books  and  papers  of  the  firm  were  transferred  to 
the  defendants.^ 

§  1356.  Partnership  Indemnity. — Where  a  partner,  in 
retiring,  covenants  to  indemnify  his  successors  against  all  lia- 
bilities connected  with  the  business  in  which  the  parties  had 
before  been  engaged,  the  covenant  did  not  apply  to  the  liabil- 
ities incurred  by  the  plaintiff  while  he  carried  on  the  business 
on  his  own  account.^ 

§  1357.  Surety  against  Principal,  for  Indemnity 
against  Liability  as  Surety. 

Form  No.  S61 

[TiTLB.] 

The  plaintiff  complains,  and  alleges : 

I.  That  ©n  the  day  of ,  18...,  at ,  in 

consideration  that  the  plaintiff  would  become  surety  for  him, 
by  executing  an  undertaking,  of  which  a  copy  is  annexed  as  a 
part  of  this  complaint,  marked  "  Exhibit  A,"  agreed  with  the 
plaintiff  that  he  would  indemnify  him,  and  save   him  harmless 

'  Clough  v.  Hoffman,  6  Wend.  499.  »  Haskell  y.  Moore.  29  r«1.  4»7. 


§  1359.  INDEMNITY.  633 

from  and  against  all  damages,  costs,  and  charges  which  he  might 
sustain  by  reason  of  his  becoming  surety  as  aforesaid. 

II.  That  the  plaintiff,  confiding  in  such  promise  of  the  de- 
fendant, executed  and  delivered  such  undertaking. 

III.  That  the  defendant  did  not  indemnify  the  plaintiff,  and 
save  him  harmless  from  such  damages,  costs  and  charges;  but, 

on   the   contrary,  the   plaintiff,    under  a  judgment,  on  the 

day  of 18...,  rendered   against   him   by  the 

court,  at   ,    in  an  action   brought  against  him  upon  said 

un  lertaking,  paid,  on  the day  of , dol- 
lars to ,  in  satisfaction  and  discharge  of  said  under- 
taking, and  also  necessary  costs  and  expenses  in  said  action  and 

on   account  of  said    undertaking,   to   the   amount   of 

dollars. 

IV.  That  notice  thereof  was  given  to  the  defendant,  and  that 
the  plaintiff  duly  performed  all  the  conditions  of  the  said  agree- 
ment on  his  part. 

V.  That  the  defendant  has  not  paid  the  same  to  the  plaintiff, 

[DKMA.KDOF  JODGMKNT.] 

[Annexcopy  of  undertaking,  marked  "Exhibit  A."] 
§  1358.  Right  of  Surety. — Where  Jones,  for  the  accom- 
modation of  Smith,  ind(^rses  a  note  to  Stiles,  and  Smith  delivers 
an  article  of  property  to  Jones  to  indemnify  him  against  his  lia- 
bility on  the  indorsement,  Stiles  can  in  equity  avail  himself  of 
thesecurity  for  the  satisfaction  of  the  note.  Jones  merely  seeks 
to  in  lemnify  himself ;  he  is  not  to  make  profit  out  of  the  in- 
dorsement. H«  is  personally  liable  to  pay  the  whole  debt, 
whether  he  receives  anything  from  the  principal  or  not,  and  it 
is  his  duty  to  pay  it ;  and  as  Jones  holds  property  in  his  hands, 
belonging  to  his  principal,  expressly  for  his  indemnity,  if  it  is 
applied  to  the  payment  of  the  debt,  both  the  duty  of  himself 
and  his  principal  is  discharged,  and  the  indemnity  at  the  same 
time  satisfied. 

§  1359.  When  Indemnitor  a  Surety. — Where  one,  at  the 
request  of  another,  eui^ages  to  answer  in  damages,  whether 
liquidated  or  unliquidated,  for  any  violation  of  duty  on  the  part 
of  the  latter,  he  is  entitled  to  be  reimbursed  in  the  same  man- 
ner as  a  surety,  for  whatever  he  may  pay, 

»  Van  Orden  v.  Durham.  a5Cal.  1.45.  4  Taunt.  464;  Stracy  v.  Bmk  of  Eng- 

As  to   the  ritiht  to  ret-over  costs  paid  bind,  19  Ens?.  Corn.  L.  HSS;  Hubbiy  v. 

and  incurr>»d  by  the  surety,  see  (.hit.  Brown,  M  Johns.  70;  Pulton   Bank  v. 

Jr..Cont.,oth  Am.  ed., oOt;  Divenport  SiHtford,  2   Wend.   48t;    Everingbam 

V.Ffrris.  tt  John-.  131  ;  B.ll  v.  M'Tri-  v.  LHngion,  2  .McCord.  l-'SVt. 
son,  I  IVt.  850:  Hrtmilion  v.  vSchnHfld,        •  Cal.  (Jivii  Code,  tec.  27<9, 
17  Eng.  Cuiu.  L.  457 ;  J  uu«m  v.  BruoKe, 


634  FORMS  OF  COMPLAINTS.  §   1360. 

§  1360.     Sub-tenant  a€:ainst  his  Immediate  Lessor. 

Form  No.   S62. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  times  hereinafter  mentionod,  the  defendant  held 
certain  premises  [describe  them],  as  tenant  thereof  to  one  A.  B., 

at  a  monthly  rent  of dollars,  payable  by  the  defendant 

to  said  A.  B.  on  the  [state  time  of  payment]. 

II.  That  on  the day  of ,  18..,  in  consider- 
ation that  the  plaintiff  then  became  the  tenant  to  the    defendant 

of  said   premises,  at  a  monthly  rent  of  dollars,  payable 

to  him  by  the  plaintiff,  the  defendant  gave  to  the  plaintiff  an 
agreement  to  indemnify  him,  of  which  the  following  is  a  copy 

[copy  agreement]. 

III.  That  the   defendant,  contrary  to  his  agreement,  failed  to 

pay  the  rent  for  the  month  of ,  which  was  during  the 

tenancy  of  the  plaintiff  under  said  agreement. 

IV.  That  by  reason  thereof,  said  A.  B.,  on  the  day  of 

,  18...,  in  the court,  commenced  proceedings 

to  recover  possession  of  said  premises,  which  were  then  occupied 
by   the  plaintiff   under  said  agreement,  for  the   non-payment  of 

said  rent;  and  thereby  the  plaintiff,  on  the day  of ,  18.., 

at  ,  was  compelled  to  pay  to  said  A.  B.,  to  the  use  of 

the  defendant,  the  sum  of  dollars,  the  amount  of  said  rent, 

together  with  dollars,   the    costs,    disbursements,    and 

attorney's  fees  therein. 

V.  That  he  has  demanded  from  the  defendant  payment  of  the 
said  amounts,  but  he  has  not  paid  the  same. 

[Demand  OF  Judgmknt] 

§  1361.  Consequential  Damages. — To  recover  consequen- 
tial damages  or  costs,  the  averment  must  be  special. 

§  1362.  Eviction  by  Wrong-daer. — If  a  tenant  is  evicted 
by  a  wrong-doer,  the  landlord  is  not  bound  to  indemnify  hira.^ 

§  1363.  On  Agreement  of  Indemnity  to  Plaintiff  for 
Defending  Action  for  Sarrender  of  Property. 

Form  No.  S6S. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  or  about  the day  of ,  18..,  one 

A.  B.  deposited  with  the  plaintiff dollars. 

II.  That  afterwards,  on  the day  of ,  18..,  the 

plaintiff,   .'t  the  request  of  the  defendant,  delivered  to  him  the 
said  sum  of  money  so  deposited  by  A.  B.,  which  mouey  the  de- 


iScbilling  v.  Holmes,  23  Cal.  227. 


§  1364.  INDEMNITY.  535 

fendant  claimed ;  and  that  the  plaintiff  did  not  know  to  whom  the 
same  belonged. 

III.  That   afterwards,    on   the    said day  of ...| 

18...,  the  plaintiff,  at  the  request  of  the  defendant,  agreed  with 
the  defendant  that  he  would  defend  any  action  which  the  said  A. 
B.  should  commence  against  him  for  the  said  money ;  and  the 
defendant,  in  consideration  of  the  premises,  then  promised  the 
plaintiff  to  indemnify  and  save  him  harmless  from  the  conse- 
quences of  such  an  action. 

IV.  That  the  said  A.  B.,on  the day  of ,  18...., 

commenced  an  action  against  the  plaintiff  in  the  [state  the  court], 
for  the  recovery  of  the  said  sum  of  money,  of  which  the  defendant 
then  had  notice. 

V.  That  the  plaintiff,  with  the  privity  of  the  defendant,  and  to 
the  best  of  his  ability,  defended  the   said  action ;  but  the  said  A. 

B.,  on  the day  of ,  18...,  at   a  general  term  of  said 

court,  recovered  a  judgment  against  the  plaintiff  in  said  action, 

to  the  amount  of dollars;  and,  afterwards,  an  execution 

was  issued  upon  the  said  judgment,  against  the  property  of  the 

plaintiff,  who,  on  the day  of ,18...,  paid  the  said  sum 

of dollars,  and  also  the  sum  of dollars,  for  officers' 

fees,  and  other  expenses  upon  the  said  writ.  And  the  plaintiff 
was  also  by  means  of  the  premises,  compelled  to  pay  other 
charges  and  expenses,  for  costs  and  disbursements  and   counsel 

fees,  amounting  to  the  sum  of dollars,  in  defending  the 

said  action. 

VI.  That  the  defendant  has  not  paid  the  same  to  the  plaintiff. 

[Demand  of  Judgment.] 

§  1364.  Voluntary  Payment. — Under  a  bond  conditioned 
to  indemnify  the  obligee  against  being  compelled  by  law  to  pay 
a  second  time  a  sum  claimed  and  paid  to  the  obligor,  if  the 
obligee  is  subsequently  sued  by  two  other  persons  separately 
claiming  the  same  sum,  and  interpleads  such  plaintiffs  by 
suit  in  chancery,  and  by  leave  obtained  pays  the  money  into 
court,  this  i^  not  a  breach  of  the  bond,  for  it  is  a  voluntary  pay- 
ment.^ 

»Ma8sey  v.  Scbott,  Pet.  C.  C.  122, 


53$  rOEMS  OF  COMPLAINTS.  §.  1365. 


CHAPTER  VI. 

PROMISE  OP  MARRIAGE. 

§  1365.    For  Refusal  to  Marry. 

Form  Nc.  364. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges : 

I.  That  heretofore,  to  wit,  on  the day  of , 

at ,  in   consideration  that  the  plaintiff,  being  then  sole 

and  unmarried,  at  the  request  of  the  said  defendant,  had  then 
promised  the  said  defendant  to  marry  him,  the  said  defendant, 
on  request,  the  defendant  promised  to  marry  the  plaintiff  within 
a  reasonable  time  [or  if  a  time  certain  was  agreed  upon,  state 
the  time]. 

II.  That  the  plaintiff,  confiding  in  said  promise,  has  always 
Bince  remained  and  continued,  and  still  is,  sole  and  unmarried, 
and  has  been  for  and  during  the  time  aforesaid,  and  now  is, 
ready  and  willing  to  marry  the  defendant. 

III.  That  the  defendant  refuses  to  marry  the  plaintiff, 
although   a  reasonable  time   elapsed    before    this     action     [or 

although  she,  on  the daj*^  of requested  him 

80  to  do],  to  her  damage  in  the  sum  of dollars. 

[Demand  of  Judgment.] 

§  1366.    When  Action  Lies — Necessary  Averments. — 

Marriage  is  a  consideration  as  valuable  as  money,  if  bona  Jile.^ 
And  the  action  on  the  promise  to  marry  is  sustainable  only  when 
the  contract  is  mutual.^  And  though  one  of  the  parties  be  an 
infant,  the  contract  is  binding  on  the  other.^  But  an  executor 
can  not  sue.*  A  man  may  maintain  an  action  for  breach  of 
promise  to  marry. *  But  an  action  for  breach  of  promise  of 
marriage  will  not  be  made  to  survive  by  proof  that  the  promisee 
had  a  child,  born  out  of  wedlock,  now  living,  and  that  the  de- 
fendant is  the  father  of  said  child. ^  Deceit  and  injury  are 
presumed  from  the  breach,  and  need  not  be  alleged.'''  Where  the 
promise  is  special,  as  "  af.er  the  death  of  the  def^iudant's 
father,"  it  should   be  so  declared  on,  with  proper  averments.® 

'  Magniac  v.  Thompson,   1  Baldw.  *  Chamberlain,  Adm'r  etc,  v.  Will- 

844.  lam  son,  2  M.  &  S.  408. 

«  1  Roll.  Abr.  2215;  Wells  v.  Pad-  *  Harrison  v.  Cag«.  1  Ld.Ravm.  386. 

gett  8  Biirb.  323.  «  Hovey  v.  Page,  55  Me.  14i. 

•  Holt  V.  Clareucieiix,   2  Stra.  937;  ^  Leopold  v.  Poppenlieimer,  8  Code 

Bac.  Abr.,  Infant;  Willard  v.  Stone,  R.  39. 

7  Cove.  22.  »  2  Peake,  103 ;    Chit,  on  Cont.  426, 


§  1370.  PROMISE  OP  MARRIAGE.  537 

Bnt  it  is  not  necessary  that  the  time  of  marriage  should  be 
specified.^  But  if  the  promise  was  to  marry  on  a  particular  day, 
it  should  be  so  stated.' 

§  1367.  Evidence  of  Promise. — Positive  proof  of  request 
and  refusal  is  never  required;  but  they  maybe  inferred  from 
circumstances,  and  the  request  may  be  made  by  the  father  or 
other  frieml,  whose  authority  may  be  inferred  from  existing  re- 
lations.3  The  plaintiff  must,  however,  aver  a  special  request  or 
an  offer  to  perform.  A  bare  allegation  of  readiness  and  willing- 
ness is  not  sufficient.*  In  an  action  for  breach  of  promise  of 
marriage,  the  declaration  of  the  defendant  that  he  would  make 
a  good  home  for  the  plaintiff,  made  at  the  time,  and  as  part  of 
his  conversa'ions  with  the  plaintiff,  which  are  declared  on  as 
establishing  the  promise  of  marriage,  are  admissible  in  connec- 
tion with  the  other  conversations,  as  tending  to  prove  the  con- 
tract.* 

§  1368.  Promise,  when  Void. — An  agreement  by  a  man 
to  marry  when  a  divorce  siiould  be  decreed  between  himself  and 
his  wife  in  a  suit  then  pending,  is  contrary  to  public  policy,  and 
void.^  No  action  can  be  maintained  for  a  breach  of  promise  of 
marriage  made  in  consideration  of  illicit  sexual  intercourse  be- 
tween the  parties.''^ 

§  1369.  Promise  After  Seduction. — A  promise  of  mamage 
made  after  seduction  has  been  effected,  and  in  consequence 
thereof,  is  not  thereby  rendered  invalid.  It  is  not  liable  to  the 
objection  that  it  encourages  immorality,  because  the  wrong  has 
been  already  perpetrated  ;^  and  where  a  seduction  is  accom- 
plished by  means  of  a  promise  of  marriage  on  the  part  of  the 
seducer,  a  consent  of  the  female  to  marry  the  seducer,  amount- 
ing to  a  mutual  promise  on  her  part  to  marry,  may  be  implied. ^ 

§  1370.  Damages. — Damages  for  pecuniary  loss  may  be  re- 
covered, as  for  loss  of  time  in  preparing  for  marriage;^"^  as  well 
as  for  suffering  and  injury  to  prospects  in  life  ;^  and  seduction 
will  aggravate  the  breach. ^^  Special  damages  for  impaired 
health  may  be  alleged  and  proved,  if  resulting  from  the  breach.^ 

JCHTth.  467.  'Steinfeld    v.    Levy,   16  Abb.    Pr. 

«Hoppe  V.  Svmonds,  2  Obit.  824;  (N.  S.)  26;  Hanks  v.  NHglee,  54  Cal. 

tee  rhillips  V.  (Jrutchlev,  7  Id    409;  51. 
ThM  Kingv.  Woolf,  1  M.  «&  P  2.i9  *  Hotchkins  v.    Hodge,    38     Barb. 

«  I'res.ott  V.  Guyler,  32   III.   812;  117. 
Hoioiikins  V.  Hodge,  38  Barb.  117.  •  People  v.  Kenyon.  5  Purk.  Or.  254. 

*  M;irt.in  V.  Patton,  1  Liitell  (Kv.),  "  Smith  v.  Sherman.  4  Cush.  408. 
234 ;  Greenup  v.  Stoker,  3  Gilm.  212.         "  1  Pars.  <  n  Contr.  548. 

»  Button  V.  McUauley,  5  Abb.  Pr.  ^  Wells  v.  Padg-tt.  8  Barb.  323; 
(N.  S  )  29.  LeHvittv.  Cutler,  .-i7  Wis.  46. 

•  iioice  V.  Brown,  38  N.  J.  L.  228.        «  Bedel  v.  Powell,  13  B.irb.  183. 


538  FORMS  OF  COMPLAINTS.  §   1371. 

Whatever  damages  the  plaintiff  may  have  suffered  in  conse- 
quence of  the  defendant's  refusal  to  marry  her,  she  is  legiti- 
mately entitled  to  recover ;  and  these  damages  are  to  be  estimated 
from  the  circumstances  of  the  parties,  and  the  situation  in 
which  the  plaintiff  is  left  by  the  defendant's  refusal  to  perform 
his  contract.^  The  interposition  of  the  defense  that  the  char- 
acter of  the  plaintiff  is  unchaste,  even  if  unsuccessful,  ought 
not,  per  se,  to  aggravate  the  damages,  unless  it  is  interposed  in 
bad  faith,  from  malice,  wantonness,  or  recklessness.^ 
T  1371.    For  Marriage  with  Another. 

Form  No.  365. 

[TiTLT!:.] 

.    The  plaintiff  complains,  and  alleges: 

I.  and  II.   [Same  as  preceding  form], 

III.  That  the  defendant  afterwards  married  a  certain  other 
person,  to  wit,  one  A.  B.,  contrary  to  his  said  promise  to  the 
plaintiff. 

[Or,  III.  That  at  the  time  of  making  said  promise  the  defend- 
ant represented  to  the  plaintiff  that  he  was  unmarried,  whereas, 
in  f:ict,  he  was  then  married  to  another  person,  of  which  fact 
the  plaintiff  had  no  notice.] 

[Dkmand  of  Judgmknt.] 

§  1372.  Married  Man  Liable. — A  single  woman  to  whom 
a  man  in  fact  murried  represents  that  he  is  single,  and  promises 
marriage,  may  maintain  an  actiou  against  him  for  his  breach  of 
promise.  3 

§  1373.  Request. — In  case  of  the  marriage  of  defendant,  a 
request  need  not  be  alleged.^  The  averment  of  marriage  dis- 
penses with  request.^ 

§  1374.  Statute  of  Frauds. — A  parol  contract  of  marringe 
that  may  be  performed  at  any  time  within  three  years,  and  con- 
sequently within  one  year,  is  not  witliin  the  Indiana  statute  of 
frauds ;  but  if  not  to  be  performed  within  one  year,  it  is  within 
the  statute.^ 

»  Tubbs  V.  Van  Kleck,  12  111.  449.  Stone,  8  Q.  B.  358;  Cnines  v.  Smith, 

2  Powers   V   Wheatley,  45  (JhI.  113.  15  Mee.  &  W.  18'.t;  conipurc  Lovelock 

8  Wild  V.  Harris,  7  C.   B.  909;  1  E.  v.  Fn.nklyn,  8  Q.  B.  371;  Turner  v. 

L.  &  E    408;  BlHttmaoher  V.  Sual,  29  BMS'kin,  2  W.  Law  M.98. 

Barb.  22;  7  Abb.  Pr.  409.  <•  Short  v.  Stone,  gujna. 

*  1  Parsons  on  Contr.  544 ;  Short  v.  •  Paris  v.  Strong,  61  Ind.  339. 


§  1376.  SALE  AND  DELIVERY  OF  CHATTELS.  539 

CHAPTER    Vir. 

SALE  AND  DELIVERY  OF  CHATTELS. 

§  1375.  Seller  against;,Purchas3r  for  Rsf  using  to  Re- 
ceive and  Fay  for  Goods. 

Form  No.  S66. 
[Title.] 

TliP plaintiff  complains,  and  alleges: 

I.  Tliatontiie  day  of ,  18,..,  at ,  the 

plaintiff  and  defemlant  entered   into  an  agreement  in  substance 
as  follows  [state  the  agreement]. 

II.  That  the   plaintiff   duly   performed  all   the  conditions    of 

said  contract  on  his  part,  and  was  on  the day  of  , 

18...,  at [the  day   and  place   of   de'ivery],  ready    and 

willing  to  deliver  said  property,  and  tendered   the  same  to   the 
defendant. 

III.  That  defendant  refused  to  accept  said  goods,  or   pay  for 

them,  pursuant  to  said  agreement,  to  the  damige  of  the  plaintiff 

dollars. 

[Demand  of  Judgment.] 

§  1376.  Delivsry — Constructive. — A  statement  of  circum- 
stances constituting  a  constructive  delivery  as  equivalent  to  an 
actual  delivery,  should  be  unequivocal. ^  A  delivery  to  the 
purchaser  of  a  city  weigher's  certificate  of  sugar  lying  on  the 
wharf  is  a  suffii^ient  delivery.^  The  delivery  of  the  export  entry 
is  not  a  delivery  of  the  article  sold.^  Mere  delivery  of  a  bill  of 
parcels  is  not  sufficient.*  The  delivery  of  an  or  ler  on  the  cus- 
tom-house, when  the  buyer  frau  lulently  intends  n^t  to  pay, 
knowing  his  inal)ility  to  do  so,  is  no  delivery.^  The  delivery, 
with  indorsement,  of  a  shipping  broker's  acl<nowledgm>Jut  of 
the  receipt  of  merchandise  to  be  transported,  drawn  in  the  form 
of  a  bill  of  lading,  but  not  signed  by  the  carrier,  is  suffi- 
cient to  constitute  a  constructive  delivery  of  merchandise  to  one 
who  made  advances  upon  the  faith  of  it.^  An  or  ler  on  the 
depositary  of  goods  sold,  given  by  the  vendor  to  the  vendee, 
constitutes  a  delivery  as  between  themselves.'^  The  transfer  ol 
warehouse  receipts  operates  as  a  constructive  delivery  of  the 
goods.^ 

1  Brtiley  V.  Ogdpn,  3  .Johns.  39Q.  TJ.   S.    284;    Bnnk    of   Roohpstpr   v. 

»  (ilftSijow  V.   Nicholson,  25  M<>.  29.  Jones,  4  Com^t.  497;  Rawls  v.   Desh. 

»  Johnson  v.  Smith,  Anth.  N.  P.  HL  ler,  28  How.  iV.  6H. 

*  Smith  V.  Mnson,  Anth.  N.  P.  225.  '  Sigerson  v.  Hitikpr.  15  Mo    101, 
8  Ives  V.  PoJHk.  14  How.  Pr.  41 1.               «  Burton  v.  Curyea,  40  111.  320. 

•  Reed   v.  Proprietors  etc.,  8  How. 


540  FORMS  OF  COMPLAINTS.  §   1377. 

§  1377.  D9livery  of  Less  Quantity. — If  a  vendor  de- 
livers a  less  quantity  of  goods  than  he  contracted  to  deliver, 
the  v.;n>lee  is  at  lil)erty  to  refuse  to  accept,  and  if  he  accepts  a 
part,  he  may  return  that,  and  refuse  to  accept  less  tlian  the 
whole,  but  hxving  received  and  retained  a  part,  he  can  not  re- 
fuse to  pay  for  the  part  received.^ 

§  1378.  Delivery — In  General. — Selecting  sroods,  and  put- 
ting them  aside  in  the  seller's  shop,  held  suffii-ient  delivery.* 
The  delivery  of  the  keys  of  a  warehouse  in  which  goods  sold  are 
deposited  is  a  sufficient  delivery. ^  Merely  taking  samples  does 
not  amount  to  a  delivery.'*  There  can  be  no  delivery  so 
long  as  any  thing  remains  to  be  done  by  the  seller  to  ascertain 
the  quantity  or  quality  of  the  goods, ^  or  so  long  as  anything 
remains  to  be  done  by  either  party  to  ascertain  ihe  price. ^ 
Cumbersome  and  heavy  articles  may  be  delivered  without  actual 
removal.  Delivering  a  schedule,  followed  by  an  agreement  on 
the  part  of  the  buyer  with  the  depositary  for  keeping  charge  of 
them,  is  sufficient.' 

§  1379.  Delivery,  how  Alleged. — ^Tender  and  refusal  of 
goods  on  the  part  of  the  principals  is  equivalent  to  delivery, 
and  may  be  specially  averred.^  A  performance  of  all  the  con- 
ditions on  his  part  may  be  alleged. 

§  1380  Growing  Crops,  Delivery  and  Sale  of.— A  grow- 
ing crop,  until  ready  for  the  harvest,  can  not  by  itself  become 
the  object  of  a  delivery,  and  can  only  be  delivered  into  the  pos- 
session of  the  vendee  by  delivering  to  him  the  possession  of  the 
land  also  of  which  it  is  a  part.^  Growing  crops  are  not  unlike 
ships  and  cargoes  at  sea  in  respect  to  their  delivery,  of  which 
delivery  can  not  be  made  until  they  reach  port.  If  delivery  be 
made  within  a  reasonable  time  after  reaching  port,  the  sale  is 
good  as  against  creditors  and  subsequent  purchasers.^"  They 
are  not  subject  to  manual  delivery  until  they  are  harvested, 
and  fnerefore  until  harvested  they  are  not  in  the  possession  or 
under  the  control  of  the  vendor,  within  the  meaning  of  the 
statute  of  frauds. ^^    A  growing  crop,  while  growing,  and  until 

>Polhf'mus  V.  Heiman,  45  Cal.  573;  •  Ward  v.  Shaw,  7  Wpnd.  404. 

ShieMs  V.  Pettee,  2  Siiiidf.  2*52.  »  Dixon  v.  Buck,  42  Bnrh.  70. 

»  Br«wer  v.  Saiisburv,    9  Bitrb.  511.  «  Komble  v.  WftUis,  10  Wend.  374. 

8  Wilk.'s  V.  Ferris, '5   Ji)hn8.   835;  »  Davis  v.  MeFarlane,  87  Cal     6.S4. 

Gray  v.  Davis,  10  N.  Y.  28').  i"  .l(.y  v.  S^-ars,  9  Pick.  4;  Portlund 

*  ,Ii)hri8i)ii  V.  8mith.  Anth.  N.  P.  Bank  v.  Stacey,  4  Mass.  661 ;  Buffing- 
81;C»rverv.  Lane,  4  E.   D.  Smith,  ton  v.  Curtis,  15  Til.  .528. 

168.  "  Bours   V.    Wehst.r,    6   Cal.  fiOO; 

*  Cunningham  v.  A'hbrook,  20  M<i.  Vi-hiT  v.  Webster,  13  Id.  58;  Pacheco 
553;  Outwater  V.  Dodpje,  7  Cow,   85^     v.  Hunsacker,  14  Id.    120;    Bernal    v. 

aruthers  v.  McGarvey,  41  Cal.  15.        Hoviuus,  17  Id.  541 ;  liobbins  v.  Ola- 


§  1383.  SALE  AND  DELIVEllT  OP  CHATTELS.  641 

ready  for  the  harvest,  is  also  unaffected  by  the  fifteenth  section 
of  the  statute  in  relation  to  the  sale  of  goo  Is  and  chattels  in  the 
possession  and  under  the  control  of  the  vendor.^  Contracts  for 
the  sale  of  growing  periodical  crops  are  not  within  the  statute 
of  frauds,  and  therefore  need  not  be  made  in  writing.*  So  a 
contract  to  deliver  corn  not  yet  gathered  or  husked,  as  it  re- 
quires labor  to  be  expended  on  the  subject-matter  to  prepare  it 
for  delivery,  is  not  witliin  the  statute  of  frauds. ^  It  is  not  the 
policy  of  the  law  to  interdict  sales  of  growing  crops  by  declar- 
ing them  absolutely  fraudulent,  on  the  mere  ground  that  the 
seller  retains,  as  he  must  necessarily  do,  the  possession  of  the 
property  until  it  shall  become  susceptible  of  actual  delivery.* 

§  1381.  Dalivery  by  and  Liability  of  Carrier. — Upon 
demand  by  the  vendor,  wliile  the  right  of  stoppage  in  transitu 
continues,  the  carrier  will  become  liable  for  the  conversion  of  the 
goods,  if  he  decline  to  redeliver  them  to  the  vendor,  or  delivers 
them  to  the  vendee.^  And  a  notice,  without  demand,  to  rede- 
liver, is  sulflcient  to  charge  the  carrier,  if  he  is  clearly  informed 
that  it  is  tiie  intention  and  desire  of  the  vendor  to  exercise  his 
right  of  stOj)p'ige  in  transitu.^  And  notice  to  the  agent  of  the 
carrier,  who  in  the  regular  course  of  his  agency  is  in  the  actual 
cuslo  ly  of  the  goods  at  the  time  the  notice  is  given,  is  notice  to 
the  carrier."'' 

§  1382.  Ship  ani  Cargo,  D3llvery  of. — If  the  delivery  of 
a  sh  panl  cargo  be  made  within  a  reasonable  time  after  reach- 
ing port,  the  sale  is  good  as  against  creditors  and  subsequent 
pui  chasers.^ 

§  1383.  RescissionofContract— Partial  Rescission.— To 
rescind  a  contract  for  the  sale  of  a  chattel,  the  property  must 
be  returned,  unless  it  be  valueless  to  both  parties.^  To  consti- 
tute an  actual  rescission  of  the  contract,  a  redelivery  of  the 
goods  is  necessary.^®    Where  M.  sold  B.  eight  bags  of  wool,  sepa- 

han,  5  Dnval  (Ky.),  28 ;  cited  in  Davis  43   N.    H.    580;     Litt   v.   Cowley,  7 

V.  McP'ailaie,  37  Cal,  634.  Taunt.  169;  Whitehead  v.  Anderson, 

J  Davis  V.  McFarlane,   87  Cal.   634.  9  Vl.  &  W.  518 ;  Bell  v.  Moss,  5  Whart. 

»  D«vi8  V.  McFarlane,   37  Gal.  634;  189. 

citing  Marshall  v.  Ferguson,  23  Id.  66.  ^  Bierce  v.  Red  Bluff  Hotel  Co.,  31 

8R<Mitchv.  Long,   27  Md.   188;  see  Cal.  160;  cited  in  Jones  v.  Earl,    87 

Stephens  v.  Santee,  51  Barb.  632.  Id.  6o0. 

«  Davis  V.  McFarlane,   37  Cal.   634;  «  Joy  v.  Sears,  9  Pick.  4;  Portland 

citing  Whipple  v.  Foot,  2  Johns.  418.  Bank  v.  Stacy,  4  Mass.  661 ;  Buffing- 

»  Reynolcls  v.  Boston  etc.  Railroad,  ton  v.  Curtis,  15  Id.  528. 

48N.H.  580;  Markwald  v.  His  Cred-  »  Perley    v.    Balch,  23   Pick.   283; 

iters,  7  Cal.  213;  Blackman  v.  Pierce,  Christy  v.  Cunnmins,  8  McLean,  886; 

23   Id.    508;    O'Neil    v.    Garrett,    6  Henokley  v.  Hendrickson,  5  Id.   170; 

Iowa,  480;  Jones  v.  Earl,  37  Cal  630.  Garland  v.  Bowling,  Hempst.  710. 

*  Reynolds  y.  Boston  etc  Railroad,  ^  Miller  v.  SmiUi,  1  Ma»on,  487* 


642  FORMS  OF  COMPLAINTS.  §  1384. 

rately  marked  and  kept  as  one  lot  of  a  particular  kind,  at  one  dol- 
lar a  pound,  by  one  bill  of  parcels,  B.  having  first  opened  some 
of  the  bags,  but  part  of  the  wool  in  one  bag  was  of  a  different 
kind,  and  B.,  without  returning  the  bag,  sent  back  the  contents 
i^rhich  M.  refused  to  receive,  it  was  held  that  B.  could  not  par- 
tially rescind  the  contract,  and  that  a  custom  in  such  cases  to 
return  the  bale  found  different  was  inadmissible,  the  bag  not 
having  been  returned ;  but  that  B.,  on  proving  a  warranty  and 
breach,  could  recoup  the  difference  between  the  actual  value  and 
the  value  if  it  had  corresponded  to  the  warrant.^ 

§  1384.  Sales  Defined — Void  Sales. — A  contract  to  deliver 
twenty  sheep  in  four  years  for  ten  delivered  now,  is  a  sale,  and 
not  a  bailment.^  The  delivery,  by  a  debtor  to  his  creditor, 
of  property,  the  value  of  which  was  to  be  applied  upon  the  debt 
in  good  faith,  is  a  sale.  If  a  standard  or  criterion  is  agreed 
upon  by  which  the  value  should  be  fixed,  and  the  amount  real- 
ized by  that  criterion  was  the  amount  to  be  applied  in  part  sat- 
isfaction of  the  debt,  that  is  fixing  the  price  sufficiently  to  make 
the  sale  valid. ^  To  constitute  a  valid  sale  of  a  chattel,  so  as  to 
change  the  property  therein,  an  agreement  as  to  price  and  de- 
livery of  the  chattel  is  requisite,  except  in  case  of  a  vessel  at 
sea,  when  the  transfer  is  effected  by  the  bill  of  sale  ;^  and  also 
of  growing  crops.  A  valid  sale  may  be  made  of  personal  goods 
which  are  out  of  possession,  and  the  sale  will  be  of  the  thing 
itself,  and  not  of  a  chose  in  action.*  A  sale  in  violation  of  a 
statutory  prohibition  is  void,  and  no  action  can  be  maintained 
upon  it.  So  of  a  sale  contravening  a  license  law.^  When  the 
substance  of  the  thing  sold  is  not  in  existence  at  the  time  of  the 
sale,  such  sale  is  void.' 

§  1385.  Statute  of  Frauds. — A  contract  for  the  sale  of 
goods,  chattels,  or  things,  in  action  at  a  price  not  less  than  two 
hundred  dollars  is  invalid,  unless  the  same,  or  some  note  or 
memorandum  thereof,  be  in  writing,  and  subscribed  by  the  party 
to  be  charged,  or  his  agent,  or  unless  the  buyer  accept  or  re- 
ceive part  of  such  goods  or  chattels,  or  the  evidences,  or  some 
of  them,  of  such  things  in  action,  or  pay  at  the  time  some  part 
of  the  purchase  money ;  but  when  a  sale  is  made  by  auction,  an 
entry  by  the  auctioneer  in  his  sale  book,  at  the  time  of  his  sale, 

1  Morse    v,    Brackett,     98    Maaa.        *  Harper  v.  Dougherty,  2  Cranch  0. 

205.  Ct.  284. 

«  Bartlett  v.  Wheeler,  44  Barb,  162.        »  The  Sarah  Ann,  2  Sumn.  206. 
The  distinction  between  a  sale  and  an        •  Best  v.  Bander,  29  How.  Pr.  489. 
exchange  explained:  Preston  V.  Keene,        ^Bertram  v.  Lvon,    1    McAll.  68; 

14  Pet.  133.  affirmed,  20  How.  U.  S.  160. 

*  Dixon  T.  Buck,  42  Barb.  70. 


§    1388.  SALE  AND  DELIVERY  OF  CHATTELa  543 

of  the  kind  of  property  sold,  the  terms  of  sale,  the  price,  and 
the  names  of  the  purchaser,  and  the  person  on  whose  account 
the  8:ile  is  made,  is  a  sufficient  memorandum.^  In  determining 
whether  the  statute  of  frauds  applied  to  a  sale  of  goods,  deliv- 
ered to  one  person  at  the  request  of  another,  the  true  test  is 
whether  there  is  any  liability  of  the  vendee  to  the  vendor ;  for 
if  there  is,  then  the  promise  of  the  guarantor  is  collateral,  and 
must  be  in  writing.  Where  the  sale  was  entered  on  the  ven- 
dor's book  as  "sold  A.  B. ;  C.  D.  security,"  and  the  bill  was 
made  out  thus:  '*A.  B.  (through  C.  D.)  bought,"  etc.,  and  it 
was  shown  that  the  vendors  had  urged  C.  D.  to  get  security 
from  A.  B.,  and  offered  to  pay  him  for  so  doing,  it  was  held 
that  C.  D.  could  not  be  regarded  as  the  principal  debtor.^ 

§  1386.  Stoppage  in  Transitu. — ^This  is  a  right  which  the 
vendor,  in  goods  sold  upon  credit,  has  to  recall  them  or  retake 
them  upon  the  discovery  of  the  insolvency  of  the  vendee,  before 
the  goods  have  come  into  his  possession,  or  any  third  party  has 
acquired  bona  fide  rights  in  them.  And  it  continues  so  long  as 
the  carrier  remains  in  the  possession  and  control  of  the  goods, 
or  until  there  has  been  an  actual  or  constructive  delivery  to  the 
vendee,  or  some  third  person  has  acquired  a  bona  fide  right  to 
them.'  A  consignor  of  property  in  transitu  has  a  right  to  direct 
a  change  in  its  destination,  and  its  delivery  to  a  different  con- 
signee.'* A  vendor  who  had  constructively  delivered  iron  lying 
at  his  furnace,  by  pointing  it  out  to  the  vendee  and  charging  it 
to  him  in  his  books,  receiving  the  vendee's  notes  for  the  same, 
may  retain  the  same  for  the  price,  if,  while  it  is  still  in  his  cus- 
tody, and  said  notes  are  unpaid,  the  vendee  becomes  insolvent.^ 

§  1387.  Measure  of  Damages. — In  an  ajtion  against  a 
purchaser  for  not  receiving  goods  according  to  contract,  the 
rule  of  damages  is  the  difference  between  the  contract  price  and 
the  market  value  at  the  time  of  the  breach  of  the  contract.^ 

§  1388.  Tender. — The  refusal  of  a  buyer  to  take  the  goods 
which  he  has  contracted  to  buy,  dispenses  with  any  necessity 
on  the  part  of  the  seller  to  make  a  tender  of  them.'  Under  a 
contract  for  the  sale  and  delivery  of  oats  "  within  tliirty  days," 
the  obligation  to  receive  is  as  strong  as  the  obligation  to  deliver. 
And  the  contractor  is  not  bound  to  deliver   after  the  contract 

*  CrI.  Civil  Code,  geo.  1624.  •  Thompson  v.  Baltimore  and  Ohio 
«  li<'Hd  V.  Lndd,  1  Edm.  100.                    B.  R.  Co.,  28  Md.  3v^6. 

a  Jones  V.  Earl.  37  Cal.  630.  •  Hnskell  v.    McHenrv,  4  Cal.  411. 

*  Sirrthorn  v.  Union  Stock  Yard  etc.  '  Calhoun  v.  Vechio,  3  Wash.  C.  Ct, 
Co^43  111.4z4.  165. 


644  FORMS  OF  COMPLAINTS.  §   1389. 

has  expired,  but  if  he  does,  it  will  be  at  the  contrnct  price.'  A 
complaint  on  a  contract  in  which  the  defendant  agrees  to  pur- 
chase a  given  quantity  of  hay,  then  in  a  stack,  from  the  plaint- 
iff, and  pay  a  fixed  sum  therefor  at  a  fixed  time,  and  the  bay  to 
be  weighed  at  the  stack,  should  aver,  if  the  hay  has  not  all  been 
delivered,  a  readiness  or  offer  on  the  part  of  the  plaintiff  to  de- 
liver.'^ Before  an  action  can  be  maintained  for  defendant's  fail- 
ure to  accept  and  pay  for  property  wliich  he  agreed  to  purchase 
at  a  future  time,  a  tender  of  the  property  and  demand  of 
payment  must  be  made  ^  A  tender  of  warehouse  receipts  for 
grain  issued  by  responsible  parties  is  a  suflScient  tender  of  the 
grain,  in  Chicago,  unless  objected  to  by  the  other  party  at  the 
time.* 

§  1389.  Tender  Waived. — After  a  sale  at  buyer's  option, 
within  a  certain  time,  notice  by  the  buj'er  before  the  time  has 
expired  that  he  will  not  accept  goods  within  or  at  the  end  of 
such  time,  waives  a  tender  by  the  seller.* 

§  1390.  'i  ender  and  Demand. — Under  a  contract  for  the 
purcliase  of  goods,  where  the  right  of  property  is  not  passed  by 
the  contract,  the  buyer  is  not  bound  to  accept  the  articles  when 
tendered,  unless  they  correspond  in  quality  with  what  was 
bargained  for.^  The  contract  is  entire,  and  calls  for  an  entire 
performance.''^ 

§  1391.    The  Same — On  Contract  made  by  Broker. 

Form  No.  867. 

[TiTLTC.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of ,  18...,  the  plaintiffs  and 

defendants  entered  into  an  agreement  by  the  hand  of  A.  B.,  a 
broker  duly  authorized  to  make  the  same,  both  on  behalf  of  the 
plaintiffs  and  of  the  defendants,  of  which  the  following  is  a 
copy  [copy  it]. 

II.  That  at  the  time  of  making  said  contract,  the  defendants 
paid  to  the  plaintiff  the  sum  of dollars  stated  therein. 

III.  That  the  plaintiffs  were  at  all  times,  within  said 

days,  ready  and  willing  to  comply  with  the  terms  of  said  con- 
tract on  their  part,  and  within  the  days  mentioned  in  said 

contract,  to  wit,  on  the day  of   ,  18...,  at , 

»  Gibbons  v.  United  States,  2  Ct.  of  262;  Millinger  v.  Daly,  56  Penn.  St. 

Clft.  R.  (Null  &H.)  421.  24o. 

«  Barron  v.  Friiik,  30  Cal,  486.  «  Add.   on  Contr.  238;  Reimers  v, 

»  HH^ar  V.  Kins,  38  Barb.  200.  Kidner,  17  Abb.  Pr.  292. 

*  M<Plier8on  v.  Gale,  40  111.  368.  »  Smith    v.  Brady,  17    N.  Y.  173 ; 

»  Me Pherson  V.  Walker,  40  111.  371;  Catlin  v.  Tobias,  26   N.  Y.  217;  see 

see  White  v.  Dobson,  17  Gratt.  (Va.)  also  Polhemusv.  Heiman,  45  Cal.  573. 


§   1394.  SALE  AND  DELIVERY  OF  CHATTELS.  545 

they  tendered  the  said  property  to  the  defendants  and  de- 
manded pnyment  of  the  balances  of  the  price  thereof. 

IV.  Tliat  the  defendants  refused  to  receive  said  property,  or 
pay  the  balance  of  the  price  therefor. 

V.  That  they  have  not  paid  the  same  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  1392,  Accaptance. — There  must  be  an  acceptance,  as 
well  as  a  delivery,  to  take  the  thing  out  of  the  statute ;  but  the 
acceptance  may  be  by  agent  of  the  buyer.^  But  the  acceptance 
of  a  mere  shop-boy  is  not  sufficient.^  An  acceptance  of  goods 
bearing  a  name  different  from  tlie  one  used  in  the  sale  note  by 
a  sub-vendee  of  part  of  goods  sold,  does  not  conclude  the 
vendee  as  to  the  whole  contract. 

§  1393.  The  Same— On  Fxomise  to  Fay  by  a  Good  Bill 
of  Ei^change. 

Form  No.  568. 
[TiTLi:]  .        — 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at , 

the  plaintiff  and  defendant  mutually  agreed  with  each  oth<T  as 
follows:  Tlie  plaintiff  agreed  to  sell  and  deliver  to  the  defend- 
ant forty  tons  of  iron,  at  the  price  of per  hundred 

weight  on  the  day  of ,  18...,  at ,  and 

the  defendant  then  promised  the  plaintiff  to  pay  him  for  said  iron, 
by  a  bill  of  exchange  at  three  months'  date  on  delivery  of  said 
iron,  and  that  such  bill  should  be  satisfactory  to  the  plaintiff. 

II.  That   afterwards,    on  the  day  of ,   18...,  at 

,  the  plaintiff  delivered  the  said  quantity  of  iron  to  tlie  de- 
fendant, upon  the  terms  aforesaid,  amounting  to dollars. 

III.  That  the  plaintiff,  on  the day  of  ,   18...,   at 

,   demanded    of    the   defendant    payment  of    the 

price  of  said  iron,  by  such  bill  of  exchange,  and  was  then, 
and  has  been  since  always  ready  and  willing  to  take  the  same. 

IV.  That  the  defendant  has  not  paid  the  plaintiff  the  price  of 
the  iron  by  a  bill  of  exchange  payable  in  three  months  from 
the  date  thereof,  which  was  satisfactory  to  the  plaintiff,  or 
otherwise  according  to  said  agreement. 

[Demand  of  Judgment.] 

§  1394.  The  Same  — For  not  Returning  Goods,  or  Fay- 
ing for  Them  in  a  Reasonable  Time. 

Form  No.  S69. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

»  Cutwater  v.  Dodge,  6  Wend.  397.      *  Smith  v.  Mason,  Anth.  N.  P.  225. 
»  Flint  V.  Lyon.  4  Cal.  17. 
ESTEB,  Vol.  1—86. 


646  FORMS  OF  COMPLAINTS.  §   1395. 

I.  That   on  the day  of ,18  . . ,  at , 

the  plaintiff,  at  the  request  of  the  defendant,  delivered  to  him 

[describe  the  property'],  of  the  value  of dollars,  upon 

the  condition  and  consideration  that  the  defendant  would  pur- 
chase the  same  for dollars,  or  return  the  same  to  the 

plaintiff  within  a  reasonable  time,  which  the  defendant  then 
and  there  agreed  to  do. 

II.  That  the  plaintiff  duly  performed  all  the  conditions  of 
•said  agreement  on  his  part. 

III.  That  a  reasonable  time  for  the  defendant  to  purchase 
and  pay  for  said  goods,  or  to  return  the  same  to  the  plaintiff, 
has  elapsed  before  the  commencement  of  this  action. 

IV.  That  the  defendant  has  not  purchased  said  goods  or 
ipaid  for  them,  nor  has  he  returned  the  same  to  the  plaintiff. 

[Demand  or  Judqmxnt.] 

§  1395.  Alternative. — A  contract  in  the  alternative  should 
be  so  set  forth. ^  And  an  averment  of  demand  of  one  of  two 
things,  when  the  option  of  the  defendant  was  in  the  alterna- 
tive, is  not  sufficient.^ 

§  1396.  The  Same— For  not  Giving  Security  Accord- 
ing to  the  Conditions  of  the  Sale  at  Public  Auction,  the 
Credit  not  having  Expired. 

Form  No.S70. 
[TiTLi:.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of  ...,...,,  18  ..,  at , 

the  plaintiff  caused  to  be  put  up  and  exposed  for  sale  by  public 
auction,  in  lots,  certain  goods  and  chattels,  one  of  the  said  lots 
being  a  certain  carriage,  subject  to  the  following  terms,  to  wit: 
that  the  highest  bidder  should  be  the  purchaser,  and  that  the 
purchaser  should  be  allowed  seven  months'  credit  for  the  pay- 
ment of  the  price,  after  giving  such  security  as  should  be  ap- 
proved of  by  A.  B.  on  the  part  of  the  plaintiff ;  or  that  such 
purchaser   should,  at  his  election,  pay  down  the  purchase  price 

at  the  time  of  the  sale,  and  in  that  event  that per  cent 

should  be  deducted!,  by  way  of  discount,  from  the  amount  of 
the  purchase  money,  of  all  of  which  said  terms  the  defendant, 
at  the  time  of  the  sale,  had  notice. 

II.  That  at  the  said  sale  the  defendant  was  the  highest  bid- 
der for,  and  was  declared  to  be  the  purchaser  of  the  Said  car- 
riage, subject  to  said  terms  of  sale,  for dollars. 

»H«toh  V.  Adams,  8  Cow.  35;  Stone  y.  Knowlton,  8  Wend.  874;  People  r. 
Tilto.i,  13  Id.  5e7. 
•  Lutweller  t.  Linnell,  12  Barb.  612. 


§    1398.  SALE  AND  DELIVERY  OP  CHATTELS.  647 

III.  That  the  plaintiff  then  delivered  the  carriage  to  the  de- 
fendant, as  such  purchaser,  and  was  tlien  and  has  since  been, 
alwuys  reaJy  and  willing  to  perform  the  said  contract  on  his 
part. 

IV.  That  the  defendant  has  not,  although  then  requested  by 

the  plaintiffs,  paid  any  part  of   the  said  sum  of dollars, 

nor  has  he  given  any  security  for  the  same,  according  to  the  said 
terms  of  sale. 

[DKMA.ND  OT  JUDOMK?JT.] 

§  1397.    For  a  Deficiancy  on  a  Resale. 

Form  No.  S7U 

[TiTLK.] 

The  paintiff  complains,  and  alleges: 

I.  That  Oil  the    day   of    ,  18...,  at  , 

he  put  up  at  auction,  at  the  auction   house  of  ,  city  of 

,  in  this  state,  sundry  [articles  of  merchandise],  sub- 
ject to  the  condition  that  all  goods  not  paid  for  and  removed 
by  the  purchaser  thereof  within  [ten  days]  after  the  sale,  should 
be  resold  at  auction  on  his  account,  of  which  condition  the  de- 
fendant had  notice. 

II.  That  the  defendant  purchased  [two  hundred  barrels  of 
flour]  at  the  said  auction,  at  the  price  of  dollars. 

III.  That  the  plaintiff  was  ready  and  willing  to  deliver  the 
same  to  defendant  on  the  said  day,  and  for  [ten  days]  thereafter, 
and  on  [etc.]  offered  to  do  so,  and  demanded  payment  therefor. 

IV.  That  the  defendant  did  not  take  away  or  otherwise  re- 
ceive the  said  goods  purchased  by  him,  nor  pay  for  them  or 
any  of  them  within  [ten  days]  after  the  sale,  nor  afterward. 

V.  That  on  the   day  of ,  18..,  at  , 

having  first  given  the  defendant  reasonable  notice  of  the  time 
and  place  of  resale,  the  plaintiff  resold  the  said  [two  hundred 
barrels  of  flour],  on  account  of  the  defendant,  by  public  auction, 
for dollars. 

VL  That  the  expenses  attendant  upon  such  resale  amounted 
to dollars. 

VII.  That  defendant  has  not  paid  the  deficiency  thus  arising, 

amounting  to dollars. 

[Dkmawd  of  Judojtknt.] 

%  1398.  Conditional  Sales. — ^A  vendor  of  goods,  which  he 
delivers,  but  the  title  to  which  is  to  remain  in  him  until  they 
are  paid  for,  may  recover  them  in  the  hands  of  a  bona  fide  pur- 
chaser from  the  vendee.^    In  a  conditional  sale,  the  right  of  the 

*  Parralee  ▼.  Catherwood,  86  Mo.  479 ;  Futnam  v.  Lamphier,  86  CaL  161 1 
Kobler  v.  Hayes,  41  Id.  455. 


548  FOIiMS  OF  COMPLAINTS.  §    1399. 

seller  to  take  possession  after  a  default  and  sell  the  property, 
mny  be  defeated  by  performance  or  an  offer  or  tender  of  per- 
formance by  the  purchaser,  and  a  sufficient  lender  gives  the 
buyer  a  right  to  the  property.^  S)  he  may  recover  the  value  of 
the  goods  less  the  amount  of  purchase  money  unpaid  at  the 
time  of  the  tender,  and  the  necessary  expenses  of  the  vendor 
in  removing  and  tal<ing  care  of  it.^ 

§  1399.  Rights  of  Vendor. — If  the  vendor,  upon  default 
of  the  vendee,  may  at  his  option  rescind  the  contract,  he  may 
take  possession  and  resell  the  i)ro|)erty;  but  this  involves  no 
forfeiture  of  the  amount  already  paid.'  The  seller  becomes,  on 
refusal  to  accept,  the  agent  of  the  buyer,  with  power  to  sell.'* 

§  1400.  Right  of  Rasale. — Where  the  buyer  wrongfully 
refuses  to  receive  and  pay  for  the  goods  sold,  the  seller  has  the 
right,  as  soon  as  he  can  with  due  regard  to  the  interest  of  the 
buyer,  and  after  giving  him  notice  of  his  intention  to  resell,  to 
sell  the  goods,  and  to  recover  the  difference  between  the  agreed 
price  and  the  sum  realized  at  the  sale,  together  with  expenses, 
from  the  buyer.^  The  buyer  is  not  entitled  to  specific  notice  of 
the  time  and  place  of  the  resale.^  But  he  must  dispose  of  the 
goods  in  good  faith.'' 

§  1401.  By  Manufacturer  for  Goods  Made  at  Defend- 
ant's Request  and  not  Accepted. 

Form  No.  S72, 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of ,  18...,  at ,  the 

defendant  agreed  with  the  plaintiff  that  the  plaintiff  should 
make  for  him  [ten  casks],  and  that  defendant  should  receive  for 
the  same,  upon  delivery  thereof dollars. 

II.  That  the  plaintiff  made  the  said  casks,  and  on  the 

day  of ,  18..,  offered  to  deliver  the  same  to  defendant 

and  has  ever  since  been  ready  and  willing  to  do  so. 

III.  That  defendant  has  not  paid  for  the  same,  nor  any  part 

part  thereof. 

[Demand  of  Judgment.] 

§  1402.    Breach  of  Contract. — If  one  contracts  to  make 

merchantable  lumber  for  another,  and  the  other  takes  away  un- 

^  Hutohings  v.   Munger,   41    Barb.  Mod.  162;  Maclean  v.  Dunn,  4  Bingh. 

896;    Miller    v.  Steen,  30   Gal.  403;  722;    Pollen  v.  Le  Roy,  30  N.  Y.  619; 

cited  in  S.  C,  34  Id.  144.  compare  Healy  v.  Utley,  1  Cow.  346. 

»  Miller  v.  Fteen,  34  Cal.  144.  «  Bogart  v.  O'liegan,  1  E.  D.  Smith, 

»  Miller  V.  Steen,  30  Cal.  407.  590;  McEachron  v.  Randalls,  34  Barb. 

*  Sanda  v.  Taylor,  5  Johns.  385.  301.     This  has  been  disapproved   in 

■  »  2  Kent's  Com.  604;  Cross  v.  Bil-  Ingram  v.  Malthieu,  3  Mo.  209. 

lings,  1  Salk.  3 ;   Holmes  v.  Hall,  6  »  Crooks  v.  Moore,  1  Sandt  297. 


§   1407.  SALE  AND  DELIVERY  OP  CHATTELS.  649 

merchantable  lumber  contrary  to  the  wish  and  orders  of  the 
maker,  this  is  not  a  breach  of  the  contract  on  the  part  of  the 
maker.  ^ 

§  1403.  Manufacturing  Goods, — A  contract  to  deliver 
goods  to  be  manufactured  by  the  party  agreeing  to  deliver,  is 
not  an  agreement  ft^r  the  sale  of  goods  within  the  the  statute.^  So 
flour,  coQtracted  to  be  manufactured  and  delivered,  is  not 
within  the  statute. ^ 

§  1404.  Causes  of  Action. — "Where  the  person  ordering 
the  goods  refuses  to  take  them  wlien  made,  it  has  been  held  that 
the  maker  may  deliver  to  a  third  party,  with  notice  to  the 
defendant,  and  sue  for  goods  sold.* 

§  1405.  Materials  Found. — It  has  been  held  that  the 
plaintiff  can  not,  on  an  account  for  goods  sold,  recover  merely 
upon  proof  of  materials  found  by  him,  and  used  in  services 
rendered.  5 

§  1406.  Title  to  Property. — Where  the  plaintiff  sold  a 
number  of  bales  of  diillings  to  A.,  for  the  pur[)Ose  of  making 
sacks,  deliveraltle  to  A.,  as  fast  as  he  needed  them  for  manufac- 
turing, and  A.  agreed  to  store  the  sacks  as  fast  as  made,  sub- 
ject to  plaintiff's  order,  with  the  p  ivile;;^  of  retaking  them  as 
fast  as  he  should  pay,  it  was  held  that  the  title  rested  in  A.,  and 
plaintiff  had  no  lien  thereon,  or  on  the  sacks,  until  delivered  to 
him.^ 

§  1407.  ForBreachof  Promise,  by  Purchaser  of  Good 
Will,  not  to  Carry  on  Rival  Traie. 

Form  No.  S7S. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  heretofore   the  defendant   carried  on  the  business   of 

,  at ;  and    on   or    about   the day  of 

,18...,  in  consideration  that  the  plaintiff  would  pur- 
chase from  him  his   store  and   goods   therein,  for  the  sum   of 

dollars,    and  the  good   will  of  the  said  business  for  the 

sum  of dollars,   the   defendant  agreed   with  the  plaintiff 

that  he  would  not  at  any  time  thereafter,  by  hi  nself,  or  partner, 
or   agent,  or   otherwise,  either   directly  or   indirectly,   set  up  or 

»  Hale  V.  Trout,  85  Cal.  229.  « Bronson    v.     Wiman,    10    Barb. 

'  Crookshank  v.  Buriell,   18  Johns.  406. 

58;  SewHll    v.  Fitch,    8    Cow.   215;  ♦  liement    v.    Smith,     15     Wend, 

Courtwriglit  V.  Stewart,  19  liHrh.  4o5;  493. 

Ddiiovhii  V.  Wil^'oii,  26  Id.  1:^8;  I'ar-  *  Oottrell    v.    Appsey,     6     Taunt 

ker  V.  Scheiuk,  28  Id.  38;RoberUon  322. 

V.  VaugUan,  6  Saudf.  1.  «  Hewlatt  v.  Flint,  7  Cal.  264. 


650  FORMS  OF  COMPLAINTS.  §  1408. 

carry  on  the  business  of  a  ,  at ,  or  at  any 

other  place  within  the  city  of 

II.  That  the  plaintiff  accordingly  purchased  from  the  defend- 
ant his  said ,  for  the  price  and  at  the  terms  aforesaid, 

and  paid  said  sum  of  dollars  for  the  said  store  and  goods, 

and  the  good  will  of  said  business. 

III.  That  the  plaintiff  duly  performed  all  the  conditions  of  said 
agreement  on  his  part. 

IV.  That  the  defendant  afterwards,  to  wit,  on  the day 

of... ,  18..,  set  up  and  carried  on  the   business  of 

,  at 

[Demand  of  Judgmknt.] 

§  1408.  Acceptance. — The  acceptance  of  the  property  pre- 
cludes an  action  by  the  buyer  against  the  seller,  for  damages,  on 
the  ground  that  the  articles  actually  furnished  do  not  correspond 
with  the  contract.^  The  buyer,  by  retaining  the  property  without 
notice  to  the  seller,  waives  all  remedy  upon  the  contract  for  any 
breach  of  an  obligation  implied  by  law,  e.  gf.,  the  obligation  to 
deliver  an  article  of  merchantable  quality.^ 

§  1409.  Agent,  Purchase  from. — An  allegation  that  the 
goods  were  purchased  of  A.,  the  agent,  than  and  there  acting  for 
defendant,  is  sufficiently  certain  to  prevent  any  misapprehension 
of  its  meaning,  and  is  the  same  as  if  the  allegation  was  of  the 
purchase  from  defendant.^ 

§  1410.  Buyer  against  Seller,  for  not  Delivering 
Goods  Sold. 

Form  No.  S74- 
[Title,] 

The  plaintiff  complains,  and  alleges; 

I.  That  on  the day  of  ,  18...,  at  , 

the  plaintiff  and  defendant  mutually  agreed  that  the   defendant 
should  deliver  [one  hundred  sacks  of  potatoes]  to  the  plaintiff 

[on  the day  of  ,  18..] ,  and  that  the  plaintiff 

should  pay  therefor dollars  on  delivery. 

II.  That  on  the  said  day,  the  plai  tiff  was  ready  and  willing, 
and  offered  to  pay  the  defendant  the  said  sum,  upon  delivery  of 
the  said  goods. 

III.  That  the  defendant  has  not  delivered  them. 

[DjEMAND   07  JUDOMSNT.] 

»  Kned  V.    Randall,  29  N.  Y.  358 ;  v.  Pettee,   2  Sandf.  2*52 ;   Howard  v. 

Fitch  V.  Carpenter,  43  Btrb  40.  Ho-y,  28  Wnnd.  360;  1  Stiirn.  477; 

'  Pisher  V.  SHmuda,    1  Cnrnp.  190;  2  K-nt,  4H0;  Pars,  on  dnt.  475;  Reed 

Milti.T  V.   Tucker,  1    Car.  &   P.  15;  v.  RtndMll,  29  N.  Y.  350. 

H;illi.lny  V.  MoDouiTdll,  20  Wend.  61 ;  »  Cochrane  v.  Goodman,  S  Cal.  244. 
Uurgoua  v.  Stone,  6  ^.  Y.  73 ;  Sbit^lds 


§   1415.  SALE  AND  DELIVERY  OF  CHATTELS.  551 

§  1411.  Action  by  Assignee. — Where  plaintiff  contracted 
for  the  delivery  of  a  quantity  of  lumber  after  a  certain  time,  and 
on  three  days'  notice,  and  assigned  the  contract  to  another,  the 
delivery  and  payment  were  concurrent  acts.^  In  case  of  an 
assignment  by  the  buyer,  the  demand  of  performance  of  a  con- 
dition precedent  on  the  part  of  the  vendor  must  be  made  upon 
the  vendor,  and  not  alone  upon  the  assignor.^  Where  a  party 
^ho  has  purchased  goods  by  fraudulent  representations,  assigns 
them  in  payment  of  a  pre-existing  debt  to  one  who  takes  them 
bona  fide,  without  notice  of  the  fraud,  the  latter  acquires  a  good 
title  as  against  the  original  vendor.^ 

§  1412.  Condition  Precedent. — Where  defendants  stipu- 
lated to  sell  plaintiff  certain  merchandise  "  shipped  "  from 
Batavia,  and  the  parties  agreed  that  the  contract  should  be 
binding  until  the  arrival  of  the  ship,  its  arrival  is  a  condition 
precedent,  which  must  be  shown  before  either  party  can  maintain 
an  action.* 

§  1413;  Damage. — In  an  action  for  not  delivering  the  thing 
sold,  the  measure  of  damages  is  the  value  at  the  time  of  the 
breach.^ 

§  1414.  Delivery — Time. — If  a  contract  or  order  under 
which  goods  are  to  be  furnished  does  not  specify  any  time  at 
which  they  are  to  be  delivered,  the  law  implies  a  contract  that 
they  should  be  delivered  in  a  reasonable  time ;  and  no  evidence 
will  be  admissible  to  prove  a  specific  time  at  which  they  were 
to  be  delivered,  for  that  would  be  to  contradict  and  vary  the 
legal  interpretation  of  the  instrument.^ 

§  1415.  Demand,  Averment  of. — A  complaint,  alleging 
that  the  defendant  sold  to  plaintiffs  a  certain  share  of  fruit 
growing  in  an  orchard,  and  after  the  sale  executed  a  guaranty 
that  the  share  of  plaintiffs  should  be  at  their  disposal,  and 
further  alleging  a  demand  for  the  same  and  refusal  of  the 
defendant  to  deliver,  is  demurrable,  as  it  should  have  contained 
an  assignment  of  the  breach  of  the  contract  or  guaranty.'''  The 
true  point  at  issue  is,  whether  the  defendant  undertook  to  de- 
liver.    From  the  nature  of  the  sale  it  operated  as  a  delivery. 

1  Fruit  V.  Phelps,  4  Cal.  282.  Shields  v.  Pettie,  4  N.  Y.  122;  Bene- 

SDusUn  V,   McAndrew,  10  Bo8W.  diet  v.  Field,  16  N.  Y.  595. 

180.  *  Hopkitis   V.   Lee,   6    Wheat  109; 

»  Hutters  V.  Hiughwout,   42  111.18.  Blydenburgh  v.  Welsh,    1    Bald.  331; 

But  see  Uobinson  v.  Hias40  Crtl.4?4,  Shepherd  v.  Himpton.  2  Wheat.  200. 

where  it  is  held  that  a  sale  of  personal  *  Cocker  v.  Franklin  MnnulHcturing 

property  p>l^^^'e*  to  the  purchaser  only  Co.,  .3  Su'nn.  530;  see  T<Twiliiger  v. 

Buch  title  H8  the  vendor  had.  Kniipp,  2  E.  D.  Smith,  8t). 

♦  Middieton  v.  Ballingall.  I  Cal.  446 ;  »  Dabovioh  v.  Erneric,  7  Cal.  209. 
Eussell    V.    Nicoll,    3    Wend.    112; 


652  FORMS  OF  COMPLAINTS.  §   1416. 

There  was  no  necessity  of  a  demand  on  defendant,  unless  for 
the  purpose  of  enablinsf  him  to  comply  with  his  guaranty.^ 

§  1416.  Executory  Agreements. — Executory  agreements 
for  the  sale  of  goods  are  within  the  statute,  as  well  as  other 
contracts.^  A  contract  for  the  sale  and  delivery,  if  so  com- 
pleted as  to  be  valid  in  the  state  where  made,  will  be  enforced 
in  Missouri. 3 

§  1417.  Memorandum. — An  agreement  of  sale  signed  only 
by  the  seller,  but  delivered  to  and  accepted  by  the  buyer,  will 
sustain  the  buyer's  action  for  non-delivery.'*  The  memorandum 
of  a  clerk  of  a  seller  of  sales  made  by  him  at  auction,  is  suffi- 
cient to  bind  the  purchaser.^  The  memorandum  required  of  a 
contract  of  safe  is  not  binding  upon  the  seller,  unless  signed 
by  the  buyer  also.^  This,  however,  was  under  a  statute  requir- 
ing the  memorandum  to  be  signed  by  the  parties  to  be  charged 
thereby. 

§  1418.  OfFer  to  Perform. — The  averments  in  a  declaration 
that  the  "  plaintiff  was  ready  and  willing  "  to  receive  goods,  and 
pay  for  them  on  delivery  and  shipment,  is  a  material  one,  and 
necessary  to  be  proved.''' 

§  1419.  Several  Causes  of  Action. — A  complaint  which 
states  the  facts  of  the  case  in  ordinary  and  concise  language  is 
not  demurrable  because  such  statement  shows  that  the  plaint- 
iff is  entitled  to  recover  upon  two  different  legal  grounds. ^  But 
it  has  been  held  that  the  purchaser  of  a  chattel  can  not,  in  the 
same  action,  seek  delivery  of  possession  of  it,  and  damages  for 
the  non-delivery ;  the  one  being  an  action  for  a  tort,  the  other 
upon  contract.^ 

§  1420.  Tender — Where  a  party  contracts  for  a  quantity  of 
wheat  to  be  delivered  on  demand,  and  paid  for  on  delivery,  in 
action  for  non-delivery  it  is  unnecessary  for  plaintiffs  to  aver 
and  prove  a  tender  of  the  purchase  money  at  the  time  of  de- 
mand or  before  suit.^" 

§  1421.  Warehouseman. — A  complaint  against  a  ware- 
houseman, which  does  not  allege  that  the  goods  belonged  to 
the  plaintiff,  or  that  defendant  was  under  an  obligation  to  de- 
liver them  to  him,  is  bad.  ^^ 

1  Dabovich  v.  Emeric,  7  Cal.  209.  •  See  Justice  v.  Lang,  30  How.  Pr. 

«  B-nnett  V.  Hull,  10  .Johns.  364.  42-5. 

«  Houghtaling  v.   Bali,  20  Mo.  563.  '  Robinson  v.  Tyson.  46  Penn.  St.  286. 

*  Eirerton     v.   Mathf-ws,     6     East,  «  MilU  v.  Bariiev,  22  Cal  210. 

807;  Tisdale  v.    Harris,   20    Pick.  9;  »  Furniss  v.   Brown,  8  How.  Pr.  59; 

Bievewright  v.  Archibald,   17  Q.   B.  Maxwell  v.  Farnam,  7  Id.  286. 

103.  »o  Urosbv  V.  Watkins.  12  Cal.  85. 

»  Frost  y.  Hill,  3  Wend.  886.  "  Thurber  v.  Jones,  14  Wis.  16. 


§  1425.  SALE  AND  DELIVERY  OP  CHATTELS.  553 

§  1422.  The  Same — For  not  Delivering  within  a  Speci- 
fied Time. 

Form  No.  S75, 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of ,  18...,  at ,  the 

plaintiff  agreed  with  the  defendant  to  buy  of  him,  and  the  de- 
fendant Ihen  agreed   to   sell  to  tlie  plaintiff,  and  to  deliver  to 

him  on  the  day  of ,  18...,  at ,  

bushels  of  oats,  at  the  price  of cents  per  bushel,  to 

be  paid  for  on  the  delivery  thereof. 

II.  That  the  said  time  for  the  delivery  of  the  said  oats  has 
elapsed,  and  that  plaintiff  has  always  bten  ready  and  willing 
to  receive  the  said  oats,  and  to  pay  for  them  at  the  price  afore- 
said, on  delivery,  according  to  the  terms  of  said  agreement,  of 
all  which  the  defendant  had  notice. 

III.  That  the  defendant  has  not  delivered  the  same,  nor  any 
part  thereof,  to  the  plaintiff,  at ,  or  elsewhere. 

IV.  That  the  plaintiff  has  thereby  lost  profits,  and  has  sus- 
tained damage  to  the  amount  of dollars. 

[Dkmand  of  Judgment.] 

§  1423.  Allegation  where  neither  Time  nor  Place  of 
Delivery  was  Fixed. 

Form  No.  S76. 

That  on  the day  of ,  18...,  at ,  the 

plaintiff  was  ready  and  willing,  and  offered  to  receive  and  pay 
for  said  fluur,  and  otherwise  has  duly  performed  all  the  condi- 
tions thereof  on  his  part. 

§  1424.  Allegation  where  both  Time  and  Place  were 
Fixed. 

Form  No.  S77. 

That  the  plaintiff  was  ready   at  the  time  and  place  appointed 

to  receive  said  ,  and  to  pay  for  the  same  accordinj:  to 

the  agreement,  and  otherwise  has  duly  performed  all  the  con- 
ditions of  the  agreement  on  his  part. 

§  1425.  Allegation  where  the  Particular  Time  of  De- 
livery was  not  Appointed. 

Form  No.  S78. 
That  on  the day  of ,  18...,  at  the  place   ap- 
pointed, the  plaintiff  was  ready  to  receive  said ,  and 

pay  for  the  same,  according  to  the  agreement,  of  wliich  the  de- 
fendant had  notice,  and  the  plaintiff  has  otherwise  duly  per- 
formed all  the  conditions  thereof  on  his  part.^ 

*  On  a  contract  to  deliver  "on  or  rpasonable  time  nfter  the  day  to  de- 
about"  a  certain  day,  the  seller  has  a    liver:  Kipp  v.  Wiiea,  i  k3andt.  585. 


554  FORMri  OF  COMPLAINTS.  §   1426. 

§  1426.  Offer  and  Tender. — In  actions  on  a  contract  where 
neither  time  nor  place  of  delivery  was  fixed,  the  plaintiff 
must  aver  an  offer  or  tender  of  performance  on  his  part,^  and 
an  offer  to  pay  on  delivery.^  Where  goods  are  to  be  delivered 
at  one  of  two  places,  at  the  option  of  the  seller,  he  is  bound  to 
give  the  buyer  notice  of  the  place  selected.^ 

§  1427.  Time. — Where  no  time  of  payment  and  no  time  of 
delivery  are  agreed  upon,  payment  and  delivery  are  concurrent 
acts,  and  neither  can  maintain  an  action  without  showing  a 
readiness  and  willingness  to  perfoim  on  his  part.^ 

§  1128.  Place. — In  actions  on  contracts  in  which  both  time 
and  place  were  fixed,  it  is  sufficient  to  aver  a  readiness  at  the 
place  appointed  to  receive  and  to  pay.^  And  such  an  averment 
is  essential.^ 

§  1429.  Tender  on  Demand. — It  need  not  be  alleged  that  a 
tender  was  made  upon  demand.  The  plaintiff  must  allege  that 
he  was  ready  and  willing  to  pay  for  the  goods  without  a  tender,''^ 
even  where  his  obligation  depends  on  an  act  of  the  defendant 
to  be  done  at  the  same  time.^  Readiness  to  receive  and  to  pay 
according  to  the  terms  of  the  agreement,  and  that  defendant 
had  notice  of  such  readiness,  is  sufficient  without  tender.^  It 
is  sufficient  to  aver  that  he  had  been  at  all  times  ready  to  receive 
and  to  pay.^** 

§  1430. — Tender  of  Performance. — A  tender  of  performance 
•will  be  necessary  in  contracts  for  the  purchase  of  a  thing  at  a 
future  day  named,  and  at  a  specified  price,  and  an  averment  of 
readiness  and  willingness  will  not  suffice. ^^ 

§  1431.    Allegation  of  Part  Payment. 

Form  No.  S79. 

[TlTLB.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the  day  of  .,  18...,  at ,  it 

was  mutually  agreed  between  the  plaintiff  and  the  defendant 
that  the   defendant   should  sell  and   deliver  to  the   plaintiff  at 


.,  on  or  before  the day  of  ,  18. 


1  Lester  V.  Jewett,  1  Kern.  458.  VhH    v.  Rice,  5   N.  Y.  (1  Seld  )  155; 

«  Smith  V.  Wrislit,  1  Abb.  Pr.  243.  Bmnson  v.  Wiman,  8  N.  Y.  182;  com-. 

•Rogers  V.  Van  Hoesen,  12  Johns,  pare  Chapin  v.  Pottnr,  1  Hili.  3ii6. 

221.  *  White  v.  Demilt,  2  Mail,  43') 

*  Coler  V.  Livanston.  2  Cal.  51.  »  2   Ch.   PI.  327  ;   liawson  v.  John- 
«  Vail  V.  Rife,  5  N.  Y.  (1  Seld.)  155;  son,  1  East,  203. 

Clarke  v.  Dales,  20  B.rh.  42;   and  see  »»  I'oiter  v.  Rose,  12  Johns.  209. 

Dunham   v.  Peltee,  8  N.  Y.  (4  Seld.)  l'  Lester  v.  Jewttl.    11   N.  Y.   453; 

508.  Smith    v.   Wriglit,    1    Al)l).  Pr.  243; 

•  Clarke  v.  Dales,  20  Rarb.  42.  cninpare  Coouley  v.  Auderaon,  1  Kill, 
^  Coonley  v.  Anderson,  1  Hill,  519;  519. 


§  1434.  SALE  AND  DELIVERY  OF  CHATTELS.  555 

[describe  the  thing],  and  that  the  plaintiff  should  pay  to  the  de- 
fendant therefor  at  the  rate  of dolhirs  per , 

amounting  to dollars,  payable  as  follows:  dollars 

.at  tlie  time  of  making  said  agreement,  and  the  re.idue  on  the 
delivery  of  the  ,  as  aforesaid. 

II.  That  the  plaintiff  at  the  time  of  the  con^^ract  paid  to  the 
defendant  the  sum  of dollars,  in  pursuance  of  the  agree- 
ment. 

HI.  That  the  plaintiff  was  ready  and  willing  at  the  time  and 
place  aforesaid,  to  receive  said  goods  and  pay  the  balance  there- 
for, of  all  which  the  defendant  had  notice ;  yet  the  said  d^-fend- 
ant  hath  not  delivered  the  same  or  any  part  thereof ;  to  plaintiff  '3 

damage dollars. 

[Demand  of  Judgment.] 

§  1432.  Paymsnt. — Tlie  giving  of  a  promissory  note,  upon 
a  purchase  of  goods,  is  not  a  sufficient  payment  to  take  the  con- 
tract of  sale  out  of  the  statute  of  frauds.^  Part  payment,  to 
take  the  contract  of  sale  out  of  the  statute,  must  be  made  at 
the  verj'  time  of  making  the  contract.  A  payment  the  next 
day,  though  accepted  on  account,  will  not  suffice.''* 

§  1433.  ReiCissionby  Venior. — ^To  enable  the  vendor  to 
rescind  the  sale,  he  must  offer  to  return  the  notes  given  for  the 
goods  3  If  the  contract  be  rescinded,  the  vendee  is  entitled  to 
recover  the  money  paid.  If  the  contract  is  not  rescinded,  the 
vendees  are  entitled  to  possession  on  payment  of  the  full  amount 
due.*  The  party  rescinding  must  put  the  other  party  in  statu 
qi(0.^  Where  A.  has  made  a  payment  in  advance  on  a  contract 
to  purchase  stock  of  B. ,  which  B.  refuses  or  fails  to  deliver,  and 
A.  notifies  B.  that  he  claims  the  right  to  rescind  the  contract, 
and  claims  repayment  of  the  money  paid,  the  notice  does  not 
affect  his  right  to  maintain  an  action  for  damages  on  the  con- 
tract.^ 

§  1434.    Against  SsUer  oT  Stock,  for  Non-delivery. 

Form  No.  S80. 
[TlTLB.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on   the  day   of ,  18...,  at   , 

the  plaintiff  and  defendant  entered  into  an  agreement  sub- 
scribed by  them,  whereby  it    was    mutually   agreed  between 

1  Ireland  v.  Johnson,  18  Abb.  Pr.  »  Coghill  v.  Boring.  15  Cal.  218. 

892.  ♦  Miller  v.  8teen,  30  ChI.  407. 

SBissell  V.  Baloolm,  40    Barb.  98;  »  Id. 

Allen  V.  Aguira,  5   N.  Y.  Leg.  Obs.  « Joues  v.  Post,  6  CaL  102. 

88a 


556  FORMS  OF  COMPLAINTS.  §    1435. 

them  that  the  defendant  should   sell  and  deliver  to  the  plaintiff, 

at  such   time  within days   thereafter    as   the   plaintiff 

should  elect, scares  of  the  ca|)ital  stock  of  the 

company,  and  that  the  plaintiff  should  pay  him  therefor 

dollars. 

II,  That  on  the day   of ,   18 . . ,  at , 

the   plaintiff  tendered   to  the   defendant  said  sum    of 

dollars,  and  otlierwise  duly  performed  all  the  conditions  of 
said  agreement  on  his  part,  and  demanded  of  the  defendant  that 
he  d  livtT  said shares  of  stock  to  the  plaintiff. 

III.  That  the  defendant  has  not  delivered  the  same. 

[Dkmand  of  Judgmknt.] 

§  1435.  Law  of  Place. — If  a  c  ntract  for  the  sale  and  as- 
signment of  certificates  of  stock  of  a  corporation  is  entered  into  in 
another  State,  but  the  certificates  are  afterwards  delivered  in  this 
state,  the  legality  of  the  sale  and  assignment  is  to  be  teisted  by  the 
laws  of  this  stute.^ 


CHAPTER    VIII. 

FOR  SALE  OF  REAL  PROPERTY. 

§  1436.    Purchaser  aga.nst  Vendor,  for  BreacTi  of  Agree- 
ment to  Convey. 

Form  No,  S8U 

[TiTLK.] 

'    The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of >  18 . . ,  at ,  the 

plaintiff  and  defendant  entered  into  an  agreement,  under  their 
hands  and  seals,  of  which  the  following  is  a  copy  [insert  copy  of 
contract]. 

II.  That  on  the day  of ,  18 . . ,  the  plaintiff 

demanded   the   conveyance  of   the   said   property  from  tlie  de- 

fend:int,   and   tendered   [ dollars]   to  the   defendant    [or 

was  ready   and   willing,    and   offered  to  the   defendant  to   pay 

dollars,  and  duly   to  perform  all   his   agreements  under 

the  said  covenants,  upon  the  like  performance  by  the  defend- 
ants]. 

III.  That  on  the day  of ,  18 . . ,  the   plaintiff 

again  demanded  such  conveyance  [or  that  the  defendant  refused 
to  execute  the  same] . 

»  Dow  v.  Gould  &  Curry  S.  M.  Co.,  81  Cal.  629. 


§  1442.  SALE  OF  REAL  PROPERTY.  557 

rV.  That  the  defendant  has  not  executed  any  conveyance  of 
the  sai  1  property  to  the  plaintiff. 

[Or,  IV.  That  there  is  a  mortgage  upon  the  said  property, 
made  by to tor dollars,  re- 
corded in  the  otlice  of ,  on  the day  of   , 

18  . .,  and  still  unsatisfied  of  record  ;  or  any  other  defect  of  title.] 
[Dkmand  of  Judgmint.] 

§  1437.  Allegation  of  Possession.— An  allegation  in  a 
comphiint  that  the  plaintiff  "  assumed  to  and  fHd  exercise  acts 
of  control  over  and  possession  of  portions"  of  a  tract  of  land, 
is  not  equivalent  to  an  averment  that  the  plaintiff  had  actual 
possession  of  the  tract  of  land,  or  any  part  of  it.^ 

§  1438.  Allegation  of  Seisin  in  Fee. — An  allegation  that 
the  plaintiff  "is  the  owner  "of  the  land  sued  for,  is  in  sub- 
stance an  allegation  of  seisin  in  fee,  in  "  ordinary  "  instead  of 
in  technical  language. ^ 

§  1439.  Contract  in  the  Alternative. — "When  a  contract 
is  in  the  alternative,  as  to  pay  the  purchase  price  or  reconvey 
the  property  on  a  day  named,  the  party  who  is  to  perform  must 
make  his  election  on  the  day  named,  and  if  he  does  not,  he  loses 
his  right  of  election.     He  can  not  wait  till  the  next  day.3 

§  1440.  Demand  and  Refusal. — It  has  been  held  to  be 
necessary  either  to  tender  a  deed  for  signature,  or  to  wait  a 
reasi)nal>le  time  for  its  preparation  by  the  vendor,  and  make  a 
second  demand-*  But  if  the  vendor,  on  the  first  demand,  posi- 
tively refuse  to  convey,  nothing  more  need  be  done.*  An  aver- 
ment of  demand  and  tender  is  necessary.^ 

§  1441.  Description  of  Property. — He  who  sells  property 
on  a  description  given  by  himself,  is  bound  in  equity  to  make 
good  that  description;  and  if  it  be  erroneous  in  a  material  point, 
although  the  variance  be  occasioned  by  mistake,  he  must  still 
remain  liable  for  that  variance,' 

§  1442.  Interpretation  of  Contract. — In  Iowa,  the  law  will 
construe  a  contract  to  be  a  mortgage,  rather  than  a  conditional 
sale ;  still  the  intention  of  the  parties  to  the  contract  is  the  true 
test.8 

•  Brennanv.  Fnrd,  46  Cal.  7.  As  to  cases  in  whicb  a  demand  is 
•Gnrwood  v.  Hastings,  38  Cal.  2T6.  necessary,  see  Bruce  v.  Tilson,  25  N. 
«  Kewrick  v.  Goldstone,  48  ChI.  554.     Y.  194. 

*  Lutweller  v.  Linnell,  12  Barb.  512;  *  Carpenter  v.  Brown,  6  Barb.  147; 
Hacket  v.    Huson,    3      Wend.     250;  Drigjajs  v.  Dwight,  17  Wend.  74. 
Fuller  V.  Hubbard,  6  Cow.   17;  see,  •  Beecherv.  Conradt,  13  N.  Y.  110; 
however,  PearboUr.  Frazer,  14  Barb.  Lester  v.  Jewett,  11  Id.  453. 

564.    where  it  is    asserted   that    the        ^  McFerraa  v.  Taylor,    8  Cranch, 

above  rule  is  axule  of  evidence  merely,     270. 

and  need  not  be  set  forth  specially.        ■  Hughes  v.  Sheaff,  19  Iowa,  835k 


558  FORMS  OF  COMPLAINTS.  §   1443. 

§  1443.  Performance  of  Conditions.— "WTiere  A.  sold  a 
lot  of  land  to  B.  and  delivered  possession  and  in  a  written  con- 
tract respecting  the  same  it  was  stipulated,  among  other  things, 
that  in  the  event  tliat  B.  should  be  dispossessed  by  legal  judg- 
ment at  any  time  within  three  years,  A.  should  pay  back  to  B. 
two  thousand  dollars ;  and  should  suit  be  brought  against  B. 
for  the  lot,  then  B.  should  notify  A.  of  it,  in  order  to  enable 
him  to  assist  in  the  defense  of  the  title,  it  was  held  that  the 
giving  of  the  notice  by  B.  to  A.  of  the  institution  of  suit  against 
B.  for  the  lot  was  indispensable  to  enable  B.  to  recover  of  A. 
on  such  contract,^  In  a  suit  on  such  contract,  B.  should  aver 
that  he  had  been  evicted  after  notice  to  A.  The  payment  of 
the  money  is  dependent  on  this  fact.* 

§  1444.  Sale  "  in  Writing." — The  party  making  an  allega- 
tion in  a  pleading,  that  the  sale  of  a  mining  claim  under  which 
he  claims  title,  was  in  writing,  is  not  thereby  precluded  from 
proving  that  the  sale  was  a  verbal  o  le.^ 

§  1445.  Writing,  Presumption  of. — If  a  complaint  avers 
that  a  contract  was  made  for  the  sale  of  real  estate,  the  pre- 
sumption is  that  it  was  in  writing.^  A  finding  of  fact  in  such 
case  need  not  state  that  the  contract  was  in  writing.' 

§  1446.  Performance  —  Averment  of  Excuse  for  Non- 
performance. 

Form  No.  SSS. 

That  on  the  ....  day  of ,  18..,  at   , 

and  before  the  time  for  performance  had  arrived,  the  defendant 
falsely  and  fraudulently  represented  to  the  plaintiff  that  he  had 

sold  said to  other  persons ;  and  that  relying  on  said 

representation,  and  solely  by  reason  thereof,  the  plaintiff  was 
not  prepared  to  receive  and  pay  for  the  same,  as  he  otherwise 
would  have  done.^ 

§  1447.  The  Same — For  Damages  for  not  Executing 
Conveyance,  and  for  Repayment  of  Purchase  Money. 

Form  No.  SSS. 
[Title.] 
The  plaintiff  complains,  and  alleges : 
I.  That  on  the day  of »  18..,  at   , 

the  plaintiff  and  defendant  entered  into  an  agreement  under 
their  hands  and  seals,  of  which  the  following  is  a  copy  [insert 
copy]. 

*  Bensley  t.  Atwill,  12  Cal.  231.  *  McDonald  v.  Mission  View  H.  A., 

«  Id.  51  ChI.  2ia 

»  Patterson  t  Keystone  Mining  Co.,  *  Id. 

80  CaL  8(i0.  *  Clarke  r.  Crandall,  27  Barb.  78. 


S   H47.  SALE  OP  RE.\L  PROPERTY.  559 

[Or,  I.     That  on  the day  of 18..,  at , 

the  defendant  agreed  with  the  plaintiff,  that  in  consideration  of 
the  sum  of dollars,  the  receipt  whereof  was  acknowl- 
edged by  the  defendant  in  said  agreement,  in  part  payment, 
and  of  the  further  sum  of dollars,  for  which  defend- 
ant agreed  to  take  a  note  secured  by  a  mortgage  on  the  prem- 
ises hereinafter  described,  said  note  and  mortgage  to  be  payable 

in  one  year  from  the  day  of ,    18. .,  and  to 

bear  interest  at  ten  per  cent  per  annum,  the  defendant  agreed 
to  sell  to  the  plaintiff,  and  the  plaintiff  agreed  to  buy  from  the 
defendant,  the  farm,  then  the    residence    of  the    defendant,  in 

the  town   of ,  county  of  ,  and  state  of ., 

containing acres  or  thereabouts,  for  the  sum  of 

dollars  per    acre,  and    that  the    defendant  would,  on  the  said 

day  of 18 . . ,  at  the office,  in 

city,  between  the  hours  of o'clock  in  the  morning  and 

o'clock  in  the   evening,    on    receiving   said    note   and 

mortgage,  execute  to  the  plaintiff  a  good  and  sufficient  con- 
veyance of  the  said  premises,  free  from  all  incumbrances,  and 
he  further  agreed  to  pay  to  this  plaintiff,  on  failure  of  perform- 
ance,   dollars,  liquidated  damages.     And  the  plaintiff 

agreed  that  he  would,  at  the  time  and  place  above  mentioned, 
on  the  execution  of  said  conveyance,  make,  execute  and  de- 
liver to  the  defendant  the  note  and  mortgage  aforesaid.] 

II.  That  on  the  day   of ,  18..,  at 

[day  and  place  agreed],  the  plaintiff  demanded  the  conveyance 
of  the  said  property  from  the  defendant,  and  tendered  to  the 
defendant  a  note  and  mortgage  made  and  executed  pursuant  to 
the  agreement,  and  was  ready  and  willing,  and  offered  to  the 
defendant,  to  make  and  extcute  the  note  and  mortgage  agreed 
on,  and  to  deliver  the  same  to  the  defendant,  and  duly  to  per- 
form all  his  agreements  under  the  said  covenant,  upon  the  like 
performance  by  the  defendant,  and  otherwise  has  duly  per- 
formed all  the  conditions  of  said  agreement  on  his  part. 

III.  That  on  the day  of ,  18 . . ,  ^t , 

the  plaintiff  again  demanded  such  conveyance  [or  that  the  de- 
fendant refused  to  execute  the  same]. 

IV.  That  the  defendant  has  not  executed  any  conveyance  of 
the  said  property  to  the   plaintiff,   nor  has   he  repaid  to  the 

plaintiff  the  said dollars   paid  by  this    plaintiff  to  the 

defendant  in  part  payment  for  said  property. 

[DxMANO  or  JuDaHurr.] 


560  FORMS  OF  COMPLAINTS.  I»    1448. 

§  1448.  Venlor  against  Purchaser  for  Breach  of  Agree- 
ment to  Purchase. 

Form  No.  S84. 

[TlTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of  ,  18...,  at  ,  in 

the  county  of ,  and  state  of ,  the  plaintiff  and 

defendant  entered  into  an  agreement,  under  their  hands  and 
seals,  of  which  the  following  is  a  copy  [insert  co^y]. 

II.  That  on  the day  of ,  18...,  at  , 

the  plaintiff  was  the  owner  in  fee  simple  of  the  said  property, 
and  the  same  was  free  from  all  incumbrances,  as  was  made  to 
appear  to  the  defendant,  and  at  said  time  and  place  he  ten- 
dered to  the  defendant  a  sufficient  deed  of  conveyance  of  the 
same  [or  was  ready  and  willing,  and  offered  to  convey  tlie  same 
to  the  defendant  by  a  sufficient  deed],  on  the  payment  by  the 
defendant  of  the  said  sum. 

III.  That  the  defendant  has  not  pai  1  the  same. 

[Demand  of  Judgment.] 

§  1449.  Admission. — In  assumpsit  for  the  value  of  land 
conveyed  by  plaintiff  to  defendant,  in  consideration  of  an  oral 
promise  by  the  latter  to  convey  other  land  worth  two  thousand 
dollars  to  the  plaintiff,  which  promise  defendant  now  refuses  to 
perform ;  it  was  held  that  defendant's  agreement,  and  the  value 
of  the  land  to  have  been  conveyed  to  him,  might  be  proved  as  an 
admission  of  the  value  of  the  land  which  he  received.* 

§  1450.  Rescission  of  Contract. — In  order  to  rescind  a 
contract  for  the  sale  of  land,  on  the  ground  that  the  vendor 
can  not  perform  it,  having  no  title,  it  is  necessary  to  aver  and 
show  an  outstanding  title  in  another.* 

§  1451.  Title. — If  the  true  owner  conveys  the  property  by 
any  name,  the  conveyance  as  between  the  grantor  and  grantee 
will  transfer  the  title. ' 

§  1452.    Averment  of  Excuse  for  Non-performance. 

Form  No.  S85. 

That  on  the* day  of ,  18...,  and  before  the 

time  for  the  plaintiff  to  perform  the  conditions  thereof  on  his 
part,  the  defendant  gave  notice  in  writing  to  the  plaintiff  that 
he  had  determined  not  to  take  the  land;  and  the  defendant 
abandoned  the  agreement,  and  ever  since  wholly  failed  to  per- 
form it,  to  the  plaintiff's  damage  dollars.* 

•  Basset  v.  Basset,  55  Me.  127. 
»  Riddell  v.  Blake.  4  Cal.  264. 

»  Fallon  V.  Kehoe,  38  Cal.  44;  citing  Middletonv.  Findla,  25  Oal.  80. 

*  North's  Adm'r  v.  Pepper,  21  Wend.  636. 


§    H55.  SALE  OF  REAL  PROPERTY.  561 

A  refusal  before  the  time  specified,  if  relied  on  as  an  excuse 
for  non-performance,  must  be  alleged  to  have  been  addressed  to 
the  party  alleging.^ 

§  1453.  The  Same  —For  not  Fulfilling  Agreement,  and 
for  Deficiency  on  Resale. 

Form  No.  S86 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  tlie  plaintiff  was  the  owner  of  four  fifty-vara  lots, 
situated   in  the  western     addition    of  the    city   and  county  of 

,  to  wit,  lots  1,  2,  5,  and  6,  in  block  No ;  that 

he  put  them  up  for  sale  at  auction,  at  the  auction  rooms  of  C. 

D.  &Co.,  No , street,  in  the  city  of ,  on 

the  ....  day  of  ,  18...,  and  announced  before  the  com- 
mencement of  the  sale,  as  a  part  of  the  terms  of  sale,  that  ten 
per  cent  of  the  purchase  money  was,  on  the  day  of  sale,  to  be 
paid  by  the  purchaser  to  the  auctioneers  C.  D.  &  Co.,  and  that 
if  any  purchaser  failed  to  make  such  payment,  the  lots  would 
be  resold,  and  the  purchaser  be  charged  with  the  deficiency. 

II.  That  at  the  said  sale  A.  B.,  the  defendant,  bid  for  and 
became  the  purchaser  of  each  and  all  of  the  said  lots,  for  the 
price  of dollars,  gold  coin,  for  each  lot. 

III.  That  the  said  defendant  did  not,  on  the  day  of  such  sale 
or  at  any  other  time,  pay  ten  per  cent,  or  any  part  of  the 
price  bid,  nor  the  purchase  money,  nor  any  part  thereof. 

IV.  That  in  consequence  of  such  neglect  of  payment,  andt 
after  notice  given  to  the  defendant  of  the  time  and  place  when 
and  where  the  said  lots  should  be  resold  on  his  account,  and 
that  he  would  be  charged  with  the   deficiency,  the  said  lots  were 

put  up  to  resale,  and  resold  at  the  price  of dollars  for: 

each  lot,   making  a  deficiency  of dollars  upon  the   said 

four  lots. 

V.  That  the  defendant  has  not  paid  said  deficiency. 

[Demand  of  Judgment] 

§  1454.  Rights  of  Vendee. — When  the  property  has  been, 
resold,  the  surplus  beyond  the  purchase  money  due  belongs  to 
the  vendee.2 

§  1455.    Vendor  against  Executor  of  Purchaser. 

Form  No.  S87. 
[TrrLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at , 

the  plaintiff  and  the  said  A.  B.  entered  into  a  contract  in  writ- 

1  Traver  v.  Halstend.  23  Wend.  66.        «  Gouldin  v.  Buckelew,  4  Cal.   107.' 
EsTBB,  Vol.  I— 36. 


562  FORMS  OP  COMPLAINTS.  §   1456. 

ing,  under  their  respective  hands,  of  which  the  following  is  a 
•copy  [copy  agreement]. 

II.  That  on  the day  of ,  18..,  at  , 

the  said  A.  B.  died,  leaving  a  last  will  and  testament,  by  which 
ihe  devised  the  said  property  as  follows  [set  forth  devise]. 

III.  That  the  defendant  was  appointed  by  said  will  as  the 
lexecutor  of  said  A.  B.,  and  by  an  order  of  the  probate  court 

of  the  county  of ,  in  this  state,  made  on  tlie  

■day  of ,  18..,  said  will  was  admitted  to  probate,    and 

Mie  defendant  was  then  appointed  and  duly  qualified  as  such 
executor. 

IV.  That  on  the day  of ,  18..,    the  plaintiff 

offered  to  the  defendant  to  convey  the  premises  to  him  and  the 
said  [other  devisees],  and  fully  to  perform  said  contract  on  his 
part,  and  requested  the  defendant  to  pay  the  money  for  the 
same,  pursuant  to  the  contract. 

V.  That  the  defendant  then  wholly  refused  to  do  so. 

VI.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judqmknt.] 

§  1456.  Vendor  against  Purchaser,  for  Real  Property 
Contracted  to  be  Sold,  but  not  Conveyed. 

Form  No.  S88. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of ,  18..,  at  , 

the  plaintiff  and  defendant  mutually  agreed  that  the  plaintiff 
should  sell  to  the  defendant,    and  that  the   defendant   should 

purcliase  from  the  plaintiff  [the  house  and  lot  No ,  

street],  for dollars.     The  following  is  a  copy  of  said 

agreement  [insert  copy]. 

II.  That  on  the  day  of ,  18..,  at , 

the  plaintiff  tendered  [or  was  ready  and  willing,  and  offered  to 
execute]  a  sufficient  deed  of  conveyance  of  the  said  property  to 
the  defendant,  on  payment  of  the  said  sum,  and  still  is  ready 
and  willing  to  execute  the  same. 

III.  That  the  defendant  has  not  paid  the  said  sum,  nor  any 
part  thereof. 

[DbMAND  or  JCDOMKNT.] 

§  1457.  Execute. — "  Execute  "  implies  delivery.*  It  also 
implies  subscription  ^  An  allegation  of  readiness  and  wiUing- 
ness  is  necessary.^ 

1  Lh  Frtvette  Insurance  Co.  v.  Rog-        '  Cheney  v.  Cook,  7  Wis.  413. 
ers,  30  liarb.  491 ;  Hook  v.   Wbile,  a6        '  Beeuher  v.  Coiiradt,  13  N.  Y.  110. 
Cul.  2U9. 


S  1460.  UNDERTAKINGS,  BONDS,  ETa  663 


CHAPTER  IX. 

UPON  UNDEUTAKINGS.   BONDS,  ETC. 

§  1458.  Short  Form — On  Undertakings  Given  in  Ac- 
tions. 

Form  No.  S89. 

[TlTLlB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of  ,  18..,  at   ,  the 

defendant  made  an  undertaking,  a   copy  of  which  is  hereto  an- 
nexed as  a  part  of  this  complaint,  marked  "  Exhibit  A." 

II.  That  thereafter,    at  ,   judgment   was    duly  given 

in  the  action  therein  mentioned  against  the  [plaintiff]  therein, 
for  the  sum  of dollars,  no  part  whereof  has  been  paid. 

III.  That  on  the day  of ,  an  execution  thereon 

against  the  property  of  ,   was    issued    to   the    sheriff 

of  said  county,  which  was,  on  the day  of ,  18.., 

returned  wholly  unsatisfied.  • 

[Demand  of  Judgment.] 
[Annex  copy  of  undertaking,] 

§  1459.  Action  on  Undertaking. — If  a  provisional  remedy 
has  been  allowed  in  an  action,  and  the  action  be  dismissed,  or  a 
judgment  of  nonsuit  entered,  the  undertaking  must  thereupon 
be  delivered  by  the  clerk  to  the  defendant,  who  may  have  his 
action  thereon.^  Upon  a  bail  bond  for  the  appearance  of  a  per- 
son arrested  in  proceedings  for  contempt,  if  the  undertaking  be 
prosecuted,  the  measure  of  damages  in  the  action  is  the  extent 
of  the  loss  or  injury  sustained  by  the  aggrieved  party  by  reason 
of  the  misconduct  for  which  the  warrant  was  issued,  and  the 
costs  of  the  proceedings. 3  Upon  any  undertaking  in  attachment 
given  in  pursuance  of  section  540  or  555,  Cal.  Code  C.  P.,  suit 
may  be  commenced  if  an  execution  upon  the  judgment  be  re- 
turned unsatisfied,  in  whole  or  in  part ;  or  he  may  proceed,  as 
in  other  cases,  upon  the  return  of  an  execution. 

§  1460.  Averments. — In  an  action  upon  an  undertaking 
given  on  appeal  from  the  judgment  of  a  district  court  for  the 
possession  of  real  estate,  for  costs  and  damages,  and  for  the 
value  of  the  use  and  occupation  of  the  premises,  it  is  not  neces- 
sary to  aver  in  the  complaint  that  the  district  court  had  juris- 

1  See  Cal.  Code  a  P.,  sec  581.  >  Cal.  Code  C.  P.,  sec.  1220. 


564  FORMS  OF  COMPLAINTS.  §    1461. 

dition  to  render  the  judgment  appealed  from.*  Nor  is  it 
necessary  to  allege  that  the  und  Ttaking  had  tlie  effect  to  stay 
the  execution  of  the  judgraenl,  if  it  appears  therein  that  pro- 
ceedings for  the  execution  of  tlie  judgment  were  never  taken. ^ 
If  a  copy  of  the  un  'ertaking  be  set  out  in  the  body  of  the  com- 
plnint,  it  will  be  takin  and  considered  as  a  part  thereof.^  A 
complaint,  in  such  case,  is  not  defective  because  it  contains  no 
averment  tliat  an  execution  had  been  issued  and  returned  un- 
satisfied, or  because  no  demand  for  payment  is  alleged  to  have 
been  made  on  the  principal.^  Nor  is  it  necessary  to  allege  that 
the  plaintiff  in  the  judgment  was  entitled  to  the  possession 
of  the  premises  pending  the  appeal.^  A  complaint  against  the 
obligors  in  an  undertaking  given  on  an  arrest  under  section 
182,  New  York  code,  must  show  the  recovery  of  a  judgment  in 
the  action  wherein  it  was  given,  by  the  defendant  therein.  An 
allegation  of  the  discontinuance  of  such  action  is  not  suffi- 
cien^..^ 

§  1461.  Breaches  and  Damages. — Taking  all  our  statutes 
together,  the  obvious  design  was  to  put  an  undertaking  on  the 
same  footing  as  a  bond.'  Special  breaches  should  be  assigned 
in  all  cases. 8  Where  the  condition  of  a  bond  is  to  pay  the  debt 
of  another,  the  condition  operates  merely  by  way  of  defeasance. 
A  bond  should  be  sued  on,  setting  out  breaches  and  damages.* 
It  is  in  general  sufficient  to  allege  the  breach  in  the  terms  of  the 
condition  of  the  bond.^°  A  declaration  on  a  bond  given  to 
prosecute  with  effect  a  writ  of  replevin,  where  the  breach  assigned 
is,  "that  the  suit  was  not  prosecuted  with  effect,  is  sufficient.^ 
The  non-payment  of  a  judgment  obtained  against  the  adminis- 
trator may  be  assigned  as  a  breach  of  the  condition  of  such 
bond.i2 

§  1462.  Conditions. — Where  the  bond  was  not  upon  the 
record,  and  the  complaint  did  not  specify  the  conditions,  it  was 
held  insufficient.^^ 

§  1463.  Construction. — An  undertaking  on  an  attachment  is 
an  original,  independent   contract  on  the  part  of   the  sureties, 

'  Murdock  v.  Brooks,  38  Cal.  596.  master-general  v.  Cross,  4  Wash.  C. 

aid.  Ct.3-26. 

*  Id.  *°  See  Berger  V.Williams,  4  McLean, 
4  Id.  677. 

»  Id.  ^'  Gorman  v.  Lenox,  Ex'rs.,  15  Pet 

«  Moses  V.  Waterbunr  Button  Co.,  115. 

87  N.  Y.  Supr.  (5  J.  &  Sp.)  393.  "  People  v.  Dunlap,  13  Johns.  437. 

»  Canfleld  v.  Bates,  13  Cal.  606.  See  Frankel  v.  Stern,  44  Cal.  108,  as 

*  VVeaternB'kv.  Sherwood,  29  Barb,  to  measure  of  damages. 

883.  "  Woods  v.  Kainey,  15  Mo.  484. 

*  Baker  v.  Cornwall,  4  Cal.  15 ;  Poit- 


{  1468.  UNDERTAKINGS,  BONDS,  ETC.  665 

and  must  be  construed  in  connection  with  the  statute  which  author- 
izes it.^  If  a  word  is  omitted  by  mistake,  and  by  looking  at  the 
whole  undertaking  and  the  statute  it  Ls  apparent  what  word  was 
intended  to  have  been  inserted,  the  omitted  word  may  be  supplied, 
and  the  contract  read  as  if  it  had  been  expressed,  without  first 
reforming  it  by  supplying  the  omitted  word.^ 

§  1464.  Consideration. — Where  it  appears  that  the  instru- 
ment was  given  in  pursuance  of  a  statute  requirement,  in  a  form 
prescribed  thereby,  and  in  a  case  within  the  statute,  those  facts 
constitute  a  sufficient  consideration  to  support  it,  though  it  be 
without  seal,  and  no  further  averment  of  consideration  is  neces- 
sary.^ The  complaint,  by  averring  that  it  was  sealed,  imports  a 
consideration ;  it  is  not  necessary  that  it  should  also  show  that  it 
was  witiiin  the  statute."*  An  undertaking  executed  by  a  sheritf 
before  leleasing  property  which  he  has  ascertained  to  be  exempt 
from  execution,  is  void  for  want  of  consideration. ^ 

§  1465.  Defective  Uniertaking. — If  an  undertaking  has 
been  executed  to  tlie  defendant  by  a  wrong  name,  the  latter  has  his 
remedy,  and  may  describe  it  as  given  to  him,  and  may  show  that 
he  was  the  party  intended.*  Where  a  mere  defective  undertak- 
ing has  been  bona  fide  given,  and  the  party  will  file  a  good  one 
before  the  case  is  submit/ted,  the  court  should  permit  him  to  do 

80."'' 

§  1466.  Demand. — Demand  upon  the  principal  is  necessary.^ 
But  a  demand  upon  the  defendant  is  unnecessary. ^  But  if  a 
demand  is  necessary  by  the  special  terms  of  the  undertaking,  it 
should  be  averred. 

§  1467.  Description  of  Instrument. — A  complaint,  in  an 
action  upon  a  statutory  undertaking,  which  contains  no  other  de- 
scription of  the  instrument  than  an  allegation  that  it  corresponds 
with  the  provisions  of  a  certain  section  of  the  practice  act, 
is  defective.  The  defect,  however,  being  of  form  rather  than 
of  substance,  objection  to  it  must  be  taken  by  demurrer  to  the 
ComplaiHt.^** 

§  1468.  Estoppel. — In  an  action  for  use  and  occupation, 
upon  an  un<lertaking  on  appeal,  the  defendants  are  e8top|)ed 
from  denying  that  the  defendant  in  the  judgment  was  in  the  pos- 
session at  the  time  he  took  his  appeal  and  gave  the  undertaking.^ 

iPrnnkel  V.  Stem,  44  Oal.  168.  »  Coulter  v.  Stark,  7  Cal.  244 ;  Cuii- 

'  Id.  ninghHinv.  H>"pkiii8,  8  Id.  S8. 

«SlMc-k  V.   Heath.  4  E.  D.    Smith,  «  Nelson  v.  tJo^iwi.  k.  5  Hill,  37. 

95;  S.  C.,  1  Abb.  Pr.  881.  "Ernst  v.   Harile,  l.Jolir.s.  Cms.  819. 

♦  Clnrk  v.Thorp.  2  Bosw.fiW.  >»  Mills  v  Glcason,  21  t  al.  274. 

»  S.  rvMidi  V.  Liisk,  4;^  Cai.  288.  "Murduck  t.  Brooks,  88  Gal.  596. 

•  Mor^uu  V.  Tbrilt,  2  Cal.  5ua. 


566  FORMS  OF  COMPLAINTS  §  1469. 

§  1469.  Execution  Averred. — If  execution  be  issued  in  a 
county  other  than  tliat  where  judgment  was  rendered,  it  may 
be  averred  as  follows:  That  on,  etc.,  a  transcript  of  said  judg- 
ment was  duly  filed   in  the  ofB(;e  of  the  clerk  of  the  

court  of  the  judicial  district,  in  the  county  of  , 

and  on  the  same  day  an  execution  thereon  was  issued  to  the 
sheriff  of  said  county,  which  has  been  returned  wholly  un- 
satisfied. 

§  1470.  Justification. — In  all  cases  where  an  undertaking 
■with  sureties,  is  required  by  the  provisions  of  this  code,  the 
oflScer  taking  the  same  must  require  the  sureties  to  accompany 
it  with  an  affidavit  that  they  are  each  residents  and  householders 
or  freeholders  within  the  state,  and  are  each  worth  the  sum 
specified  in  the  undertaking,  over  and  above  all  their  just  debts 
and  liabilities,  exclusive  of  property  exempt  from  execution; 
but  when  the  amount  specified  in  the  undertaking  exceeds  three 
thousand  dollars,  and  there  are  more  than  two  sureties  thereon, 
they  may  state  in  their  alfldavits  that  they  are  severally  worth 
amounts  less  than  that  expressed  in  tiie  undertaking,  if  the 
whole  amount  be  equivalent  to  that  of  two  sufficient  sureties.^ 

§  1471.    On  an  Undertaking  for  Costs  of  Appeal. 

Form  No.  390. 

[TiTLK.] 

The  ]»laintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18...,  judgment  was 

ren<lered  by  the  superior   court  of  the    county  of   , 

state  aforesaid,  in  favor  of  the  above-named  plaintiffs,  against 

one  C.  D.  for  the  sum  of  dollars;  and  that  on  the  

day  of ,  18...,  the  said  C.  D.  appealed  to  the  supreme 

court  of  said  state  from  the  said  judgment. 

II.  That  upon  said  appeal  the  defendants  made  and  filed  with 
the  clerk  of  said  court,  for  the  use  of  these  plaintiffs,  their 
■written  undertaking  and  justification  therein,  of  which  the  fol- 
lowing is  a  copy  [copy  undertaking]. 

III.  That  on  the  day  of    ,    18...,  the  judgment 

appealed  from  was  by  the  said  supreme  court  aflSrmed,   and  the 

sum  of dollars,  costs  and  damages  on   the  appeal,  was 

awarded  against  the  appellant. 

IV.  That  he  has  not  [)aid  the  same,  nor  any  part  thereof. 

[Demand  ofJupomknt.] 

§  1472.  Action  by  Assignee — ^To  enable  the  assignee  of  a 
judgment  to  sue  on  the  appeal  bond,  he  must  have  an  assign- 

»  Cal.  Code  0.  P.,  sec  1057. 


§   1479.  UNDERTAKINGS,  BONDS,  ETC.  567 

ment  of  the  bond.^  An  assisninient  which  purports  to  transfer 
to  the  a8sig;nee  all  the  right,  title,  and  interest  of  the  assignor 
in  the  undertaking,  "  and  in  the  amount  thereby  secured,"  is 
broad  enough  to  enable  the  assignee  to  recover  for  use  and  oc- 
cupation pending  the  appeal,  and  costs. ^ 

§  1473.  Appeal  Dismissed. — Where  an  appeal  is  taken  to 
the  supreme  court  from  a  judgment  by  filing  notice  of  appeal 
and  undertaking,  and  the  appeal  is  aftervrards  dismissed  by  the 
supreme  court  for  failure  of  the  appellant  to  send  up  a  tran- 
script, the  sureties  are  liable  on  the  undertaking  on  appeal.' 
Where  an  appeal  is  withdrawn  or  dismissed  by  consent  of  both 
parties,  without  being  called  to  a  final  hearing,  no  action  can 
be  maintained  on  the  appeal  bond.^  Where  an  appeal  is  dis- 
missed on  motion  of  respondent,  based  on  written  consent  of 
the  appellant,  the  dismissal  operates  as  an  affirmance  of  the 
judgment,  and  charges  the  sureties  on  the  undertaking  on 
appeal.  5 

§  1474.  Delivery. — In  an  action  on  an  undertaking  on  ap- 
peal, it  is  a  sufficient  averment  of  the  delivery  of  tlie  undertak- 
ing if  the  complaint  show  that  it  was  filed  in  the  clerk's  office.* 

§  1475.  Execution,  Issue  of. — An  averment  in  tlie  com- 
plaint in  a  suit  on  an  appeal  bond  that  execution  had  been 
issued  on  the  judgment  and  returned  unsatisfied  is  unnecessary* 
The  non-payment  of  the  judgment  can  be  shown  without  issu- 
ing an  execution.' 

§  1476.  Frivolous  Appeal. — Damages  for  a  frivolous  ap- 
peal can  not  be  recovered  in  an  action  upon  the  undertaking  on 
appeal,  unless  they  have  been  specially  awarded  by  the  appel- 
late court.^ 

§  1477.  Final  Judgment. — It  need  not  be  alleged  that  the 
judgment  wns  final.^ 

§  1478.  Judgment  Reversed. — Where  an  appeal  bond  was 
conditioned  to  pay  the  judgment  appealed  from,  if  the  same 
should  be  affirmed,  and  it  appeared  tliat  the  judgment  appealed 
from  was  reversed,  the  conditions  of  such  bond  were  not  broken, 
and  no  action  would  lie  thereon.^" 

§  1479.  Judgment  Affirmed. — Under  the  usual  undertak- 
ing on  appeal,  if   the  judgment  be  affirmed,  the  liability  of  the 

»  NTosPs  V.  Thome.  6  Cal.  87.  «  Holmes  v.  Ohm,  23  Cal   2fi8. 

«  Murlock  V.  IJrooks  38  Cal.  596.  '  Tissot  and  VVite  v.  Darling,  9  Cal. 

a  Ellis  V.  Hull.  23  Cal.  160.  278. 
.   *08born    v.   Heiidrickson,    6    Cal.        SHuthawav  v.  Davis,  33  Cal.  1f>1. 
175.  »  Sutlvrl.-iM.i  V.  I'helps  22  111.  91. 

6  Chase  v.  Beraud,  29  Cal,  138.  "  Chase  v.  Kies,  10  Cal.  517. 


*668  FORMS  OF  COMPLAINTS.  §   1480. 

surety  accrues  only  after  an  affirmance  upon  that  appeal  of  the 
then  existing  judgment.  An  interlocutory  order  of  affirmance 
reserving  leave  to  answer  and  litigate  further,  followed  by  new 
pleadings  and  a  new  judgment  upon  the  new  issue,  does  not 
render  the  sureties  liable.^  An  undertaking  or  bond  was  con- 
strued to  relate  only  to  an  action  pending  against  the  obligees 
at  the  time  it  was  given.'' 

'  §  1480.  Liability  of  Sureties. — The  sureties  on  an  under- 
taking are  entitled  to  stand  on  the  precise  terms  of  the  contract, 
and  there  is  no  way  of  extending  their  liability  beyond  the 
stipulation  to  which  they  have  chosen  to  bind  themselves.^ 
And  a  judgment  against  the  principal  is  conclusive  against  the 
surety,^  But  an  undertaking  on  appeal  conditioned  for  the 
payment  of  what  the  judgment  creditor  has  no  legal  right  to 
receive,  is  not,  as  to  such  condition,  binding  upon  the  sureties.* 
The  sureties  on  an  appeal  bond  can  not  be  sued  until  the  judg- 
ment against  their  pilncipal  is  in  a  condition  to  be  enforced  ny 
execution. ^  So  long  as  there  is  an  order  of  court  in  force, 
staving  execution  on  the  judgment  against  a  party  who  had  ap- 
pealed from  a  lower  court,  the  sureties  on  the  appeal  bond  can 
not  be  sued."'' 

§  1481.  Made  ani  Filed. — The  averment  in  the  second 
allegation  of  t  le  above  form,  that  the  defendants  made  and 
■filed,  etc.,  is  sufficient.^ 

§  1482.  Parties. — Where  defendant  executed  an  undertak- 
ing on  appeal  to  husband  and  wife,  plaintiffs,  an  action  on  the  un- 
dertaking may  be  maintained  in  the  name  of  husband  and  wife.^ 

§  1483.  Rights  of  Surety. — Whenever  any  surety  on  an 
undertaking  on  appeal,  executed  to  stay  proceedings  on  a 
■money  judgment,  pays  the  judgment,  either  with  or  without 
action  after  affirmation  by  the  appellate  courts,  he  is  substi- 
•tuted  to  the  rights  of  the  judgment  creditor,  and  is  entitled  to 
•control,  enforce,  and  satisfy  such  judgment  in  all  respects  as  if 
he  had  recovered  the  same.^" 

§  1484.  The  Same— For  Costs  and  Damages  on  an  Ar- 
rest. 

Form  No.  S91. 
[Title.] 

The  plaintiff  complains,  and  alleges : 

^  Poppenhusen  v.  Seeley,  8  Keyes,  *  Parnell  v.  Hancock,  48  Cal.  452. 

150.  7  1,1. 

'  Bfiach  v.Endress,  51  Barb.  570.  »  Gibbons  v.  Berhard,  3  Bosw.  635; 

•  Tarpey  v.  Schillenberger,  10  OaU  but  compare  Pevey  v.  Sleicrht,  1 
890.  Wend.  518. 

*  Pico  V.  Webster,  14  Cal.  202.  »  Tissot  v.  Darling,  9  Cal.  278. 
»  Whitney  v.  Allen,  21  Cal.  233                w  Cal.  Code  0.  P.,  sec.  1059. 


§   1485.  UNDERTAKINGS,  BONDS,  ETC.  569 

I.  That  heretofore  an  action  was  commenced  in  the  superior 

court  of  the   county   of ,  state  aforesaid  [or  otherwise 

state  the  court],  against  this  plaintiff,  wherein  the  said  A.  B. 
made  application  to  the  Hon.  C.  D.,  judge  of  said  court, 
for  an  order  of  arrest  against  this  plaintiff,  whereupon  the  de- 
fendants, on  the  day  of ,  18  ...,  at ,  exe- 
cuted and  filed  with  the  clerk  of  said  court,  for  the  benefit  of 
this  plaintiff,  pursuant  to  law,  a  written  undertaking,  of  which 
the  following  is  a  copy  [copy  undertaking]. 

II.  That  thereupon,  pursuant  to  said  application  and  under- 
taking, an  order  was  made  by  the  judge  of  said  court  for  the 
arrest  of  this   plaintiff,  and  thereby  the  said  A.  B.  required  the 

sheriff  of county  to  arrest  this  plaintiff,  and  hold  him 

to  bail  in  the  sum  of dollars. 

III.  That  this  plaintiff  was,  on  the  day  of , 

18  ...,  arrested  by  the  sheriff  of  the ,  under  said  order, 

and  was  unjustly  detained  and  deprived  of  his  liberty  thereun- 
der for  the  space  of  ....  days,  to  his  damage dollars. 

IV.  That  such  proceedings  were  afterwards  had  in  said  ac- 
tion that  this  plaintiff,  on  the  ....  day  of ,  18  ..,  re- 
covered a  judgment  therein,  which  was  rendered  by  said  court 
against  the  defendant,  A.  B.,  for dollars. 

V.  That  on  the day  of ,  18  ..,  at , 

this  plaintiff  demanded  payment  of  said  judgment  and  damages 
from  the  defendant. 

VI.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  1485.    On  an  Undertaking,  on  Release  from  Arrest. 

Form  Ifo.  S92. 
[Titlt:.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18  . . ,  at , 

under  an   order  of  arrest  duly  granted  by  A.  B.,  a  judge  of  the 

court,    against  one  C.    D.,  in  an  action  brought  in  tie 

said  court  by  the  plaintiff  herein  against  the  said  CD.,  the 
said   C.    D.  was  arrested  by  the  sheriff  of  the  county  of 

IE.  That  o  1  the day  of ,  18  . . ,  at , 

the  defendants  undertook,  in  the  sum  of dollars,  that 

the  said  C.  D.  should,  if  released,  render  himself  at  all  times 
amenal)Ie  to  the  process  of  the  court  during  the  pendency  of 
the  said  action,  and  to  such  as  might  be  issued  to  enforce  the 
judgment  the  ein,  a  copy  of  which  undertaking  is  hereto  an- 
nexed, marked  "  Exhibit  A.'* 


670  FORMS  OF  COMPLAINTS.  §   1486. 

III.  That  thereupon  the  said  C.  D.  was  released. 

IV.  That  on  the day  of  ,  18...,  judgment 

was  rendered  for  the  plaintiff  in  the  said  action,  for 

dollars. 

V.  That  on  the day  of   ,  18...,  execution 

was  issued  against  the  property  of  the  said  C.  D.,  under  the 
said  judgment,  but  the  sheriff  has  made  return  that  no  prop- 
erty was  found. 

VI.  That  on  the day  of   ,  18...,  execution  was 

issued  against  the  person  of  the  said  C.  D.,  under  the  said 
judgment,  but  the  sheriff  has  made  return  that  he  could  not  be 
found. 

VII.  That  the  said  judgment  has  not  been  paid,  nor  any  part 

thereof. 

[Demand  op  Judgment.] 
[Annex  copy  of  undertaking,  naarked  "Exhibit  A."} 

§  1486.  Attachments. — On  a  bond  given  to  an  officer  to  be 
relieved  from  arrest,  on  an  attachment  conditioned  to  appear 
at  the  return  day,  an  allegation  of  non-appearance  is  sufficient.^ 
On  an  attachment  for  a  contempt  the  complaint  must  state 
plaintiff's  connection  with  the  attachment  proceedings,  and  to 
what  extent  he  was  aggrieved  by  the  acts  of  defendant. ^  That 
the  order  for  the  attachment  was  duly  granted  is  sufficient  ^ 

§  1487.  Essential  Averment. — A  complaint  on  a  rerog- 
nizance  in  a  criminal  case  sliould  aver  that  the  same  was  filed 
in  or  became  a  matter  of  record  in  the  court  where  it  was  re- 
turnable.* 

§  1488.  Execution  must  be  Averred.— In  an  action  upon 
an  undertaking  given  to  procure  a  discharge  from  arrest,  the 
complaint  is  bad  upon  demurrer  if  it  omits  to  aver  the  issuing 
and  return  of  an  execution  against  the  property  of  the  debtor 
arrested,  and  also  the  issuing  and  return  of  an  execution  against 
the  person. 5    Execution  agtiinst  property  need  not  be  averred.* 

§  1489.  Execation  against  tli3  Person. — The  averment  of 
the  recovery  of  the  judgment,  and  proceedings  thereupon  had 
supplementary  to  execution,  and  the  issuance  of  attachment  for 
contempt,  under  which  the  instrument  sued  upon  was  executed, 
is  sufficient.' 

*  ThnnriHS  V.  Cameron.  17  "Wend.  59;  •  Gauntley  v.  Wheeler,  31  How.  Pr. 
Hart  V.  Seixns.  'il    II.  40.  187. 

2  llnvnor  V,  Clark.T  liarb.  581.  *  licnick   v.    Orser,    4    Boew.    384; 

»  Colle  C.  1*.  4')H.  Gr.irnry  v.  Levy,  12  R-irl..  tilO. 

*  Mi'iiducino  County  v.  Lamur,  30  '  Ivt-llv  v.  McCuriuick,  2  K  D. 
Cal.  b27.  SiuiLlJ,  003. 


§   1492.  UNDERTAKINGS,  BONDS,  ETC.  571 

•  §  1490.  Indictment  Fo  n 5.. — Where  a  bail  bond  is  given 
to  appear  and  answer  an  iinlieiraeiit,  tlie  complaint  must  aver 
that  the  indictment  was  found  or  is  pending.^ 

§  1491.  ReC02nizance. — In  an  action  in  the  district  court 
upon  a  recoi^nizance  of  bail  given  under  order  of  the  county 
ju  ge  for  the  release  of  a  party  charged  with  larceny,  the  com- 
plaint need  not  aver  th.at  tlie  recognizance  was  certified  by  the 
court  of  sessions  to  the  district  court,  nor  that  the  principal  has 
not  satisfied  the  judgment  of  forfeiture.  The  authorities  that 
such  certificate  and  averment  are  necessary  refer  to  priiceedings 
by  scire  facias  upon  a  record  of  the  recognizance  to  which  the 
accused  is  a  pnrty.^  Tiie  com[)laint  alleged  substantially  that 
G.  was  indicted  for  gaming  and  arrested,  and  the  defendant 
executed  the  recognizance  which  is  set  out;  that  G.  appeared 
at  the  first  term  of  the  court  thereafter  and  plea  led  not  guilty, 
and  ca'^e  continued  to  next  term,  at  which  time,  the  case  being 
called  for  trial,  G.  did  not  appear,  and  the  defendants,  though 
"called,"  did  not  produce  his  body;  that  the  court  then  made 
an  order  forfeiting  the  rec  )gnizance,  and  that  the  defenilants 
did  not  produce  the  body  of  G.  before  the  final  adjournment  of 
the  court.     SMCh  acoraphint  states  a  cause  of  action. 3 

§  1492.  On  an  Undertaking  for  Costs  and  Damages  on 
Attachment. 

Foi-m  No.  S9S. 
[Title] 

i     The  plaintiff  complains,  and  alleges : 

I.  That  heretofore  an  action  was  commenced  in  this  court  by 
the  defendant  A.  B.,  for  the  recovery  of  money,  against  this 
plaintiff,  wherein  the  said  A.  B.  made  application  to  the  clerk 
of  the  said  court  for  a  writ  of  attachment  against  the  property 

of  this  plaintiff,  whereupon   the  defendant,   on    the day  of 

,  18...,  at ,  executed  and  filed  with  the  clerk  of 

said  court,  for  the  benefit  of  this  plaintiff,  pursuant  to  section 
five  hundred  and  thirty-nine  of  the  code  of  civil  procedure,  a 
■written  undertaking,  of  which  the  following  is  a  copy  [copy  of 
the  undertaking]. 

II.  That  pursuant  to  said  application  and  undertaking,  the 
clerk  of  said  court  issued  a  writ  of  attachment,  directed  to  the 
sheriff  of  said  county,  whereby  the  said  sheriff  was  required  to 
attach  and  safely  keep  sufficient  property  of  this  plaintiff  to  sat 
isfy  the  demand  of  the  said  A.  B.  in  said  action,  to  wit,  the  sum 
of  dollars,  together  with  costs  and  expenses. 

1  People  V.  Smith,  3  Cal.  271.  «  People  v.  Love,  19  Cal.  676. 

»  People  V.  Smith,  18  Cal.  498. 


572  FORMS  OF  COMPJ^iAINTS.  §   1493. 

Ill  That  at  the  time  of  the  issuing  of  said  attachment,  this 
plaintiff  was  engaged  as  a  merchant  in  selling  hardware  at  whole- 
sale, at  No ,  street,  in  the  city  of ,  in  said 

county;  tliat  the  sheriff  of  said  county,  pursuant  to  said  writ  of 
attacliment,  entered  said  store  and  removed  the  property  of  this 
plaintiff,  and  thereby  the  business  of  this  plaintiff  was  utterly 
broken  up,  and  the  goods  attached  became  unmarketable  and 
use'ess,  and  this  plaintiff's  credit  became  thereby  greatly  in- 
jured, to  his  damage dollars. 

IV.  That  such  proceedings  were  had  in  the  suit  aforesaid  that 

this  plaintiff,    on   the day   of ,  18. . ,   recovered 

judgment  therein,  which  was  rendered  by  said  court  against  the 

said  A.   B.,  plaintiff  therein,  for  the  sum  of dollars, 

Ms  costs  of  defending  said  action. 

V.  That  on  the day  of ,  18. . ,  at , 

this  plaintiff  demanded  payment  of  the  said  judgment  from  said 
A.  B. 

VI.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Dkmand  of  Judgment.] 

§  1493.  Principal  and  Surety. — Where  the  surety  under- 
takes that  his  principal  shall  pay  any  judgment  to  be  rendered, 
etc.,  the  judgment  against  the  principal  is  conclusive  against  the 
Buretv.^ 

§  1494.  Statute,  how  Pleaded. — Reference  to  statute,  as 
in  the  above  form,  is  sufficient.  The  court  is  bound  to  take  no- 
tice of  a  public  statute. 2 

§  1495.  On  an  Undertaking  Given  to  Procure  the  Dis- 
charge of  an  Attachment. 

Form  No.  S94.  , 

[TiTLE.l 

The  plaintiff  complains,  and  alleges: 

I.  That  on    the day  of  ,18..,    an  attachment 

against  the  property  of  C.   D.  was  issued  out  of  the 

court,  by  the  clerk  thereof,  in  an  action  commenced  by  A.  B., 
the  plaintiff  herein,  agianst  the  said  C.  D.,  the  defendant  herein, 
to  recover  [state  what]. 

II.  That  afterwards,   on   the  ....  day  of ,    18. . ,  at 

,  the  said   CD.   appeared  in  said  action,   and  applied 

for  a  discharge  of  said  attachment,  and  that  the  defendants 
herein,  E.  F.  and  G.  H.,  thereupon  executed  and  delivered  to 
this  plaintiff  a  written  undertaking  pursuant  to  law,  a  copy  ol 

»  Pico  V.  Wphstfr,  14  Cal.  202. 

«  Goelet  V.  Cowdrey,  1  Duer,  132;  Shaw  v.  Tobias,  3  Comst.  188. 


§  1496.  UNDERTAKINGS,  BONDS,  ETC.  573 

which   is   hereto   annexed   and   made  a  part  of  this  complaint, 
marked  "Exhibit  A." 

III.  Tliat  upon  delivery  of  said  undertaking  the  said  attach- 
ment was  discharged  and   the  property  was  released,  and  that 

subsequently,  on  the day  of ,  18...,  said  plaintiff 

recovered  ju<lgraent  against  the  said  C.  D.,  which  was  rendered 

in  said   action,  for dollars,  damages  and   costs,  which 

judgment  was  entered    and  docketed  in  the  office  of  the   clerk 

of county,  on  the day   of ,   18...,  and  that 

said  ju<^gment  has  not  been  paid. 

IV.  That  on  the day  of ,  18...,  this  plaintiff  de- 
manded of  the  defendants  herein  payment  of  said  judgment, 
which  was  by  each  and  all  of  them  refused. 

V".  That  they  have  not  paid  the  same,  nor  any  part  thereof, 
[Demand  of  Judgment.] 
[Annex  copy  of  undertaking,  marked  "Exhibit  A."]* 

§  1496.  Consideration. — Where  defendant  applies  to  the 
court  for  a  discharge  of  the  attachment,  and  an  undertaking  is 
executed  by  D.  &  R.,  reciting  the  fact  of  the  attachment,  and 
that  "in  consideration  of  the  premises,  and  in  consideration  of 
the  release  from  attachment  of  the  property  attached  as  above 
mentioned,"  they  undertake  to  pay  whatever  judgment  plaintiff 
may  recover,  etc.,  and  the  court  makes  an  order  discharging 
the  writ  and  releasing  the  property ;  in  suit  against  the  sureties 
on  the  undertaking,  the  comi)laint  need  not  aver  that  the  prop- 
erty was  actually  released  and  delivered  to  the  defendant ;  that 
as  thvj  consideration  for  the  undertaking  was  the  release  of  the 
propeily,  and  as  the  complaint  avers  such  release  in  conse- 
quence and  in  consideration  of  the  undertaking,  by  order  of  the 
court,  which  is  set  out,  the  actual  release  and  redelivery  of  the 
property  to  defendant  is  immaterial,  the  plaintiff  having  no 
claim  on  it  after  the  undertaking  was  given  and  the  order  of 
release  made^.  The  recitals  in  statutory  undertakings  given  in 
such  cases  have  the  same  effect  and  are  to  be  construed  in  the 
same  way  as  bonds  making  the  same  recitals,  and  are  conclusive 
of  the  facts  stated. ^  And  a  complaint  in  an  action  on  an  under- 
taking given  under  section  540  of  the  code  of  civil  procedure  of  Cali- 
fornia, which  alleges  that  the  same  was  given  to  release  certain 
property  taken  under  attachment,  is  sustained  by  proof  of  an  un- 
dertaking which  recites  that  the  same  was  given  to  prevent  a  levy.^ 

1  For  a  form  of  complaint  in  such  •  McMillan  v.  Dana.  18  Cal.  339. 

Cfises,    consult  Cruyt   v.    Phillips,  7  *  McNamara     v.     Hammt-rsly,     1 

Abb.  Pr.  205.  West  Coast  Rep.  560;  McOutcheon 

«  McMillaa  v.  Dana,  18  Cal.  889.  v.  Weston,  Id.  850. 


674  FORMS  OF  COMPLAINTS.  §   1497. 

§  1497.  Averments — Issue  of  Attachment. — It  need  not 
be  alleged  that  the  attachment  was  duly  issued,  if  it  be  shown 
that  it  was  issued  from  a  court  of  general  jurisdiction. ^  And 
reciting  the  fact  of  a  levy  of  the  writ,  the  complaint  need  not 
aver  or  set  out  the  facts  which  authorized  the  issuing  of  the 
attachment.  The  recital  of  the  levy  estops  defendants  from 
denying  it,  and  the  levy  is  sutficient  without  averment  of  the 
previous  proceedings.'^ 

§  1498.  Released  upon  Delivery. — The  complaint  should 
allege  that  the  property  attached  was  released  upon  the  de- 
livery of  the  undertaking.^  A  failure  to  do  so  is  fatal,  and  the 
defect  may  be  taken  advantage  of  by  demurrer,  on  the  ground 
that  the  complaint  does  not  state  facts  sutflcient  to  constitute  a 
cause  of  action.^  It  is  necessary  also  to  state  the  consideration 
of  the  undertaking;  a  mere  reference  to  the  condition  of  the 
bond  itself  is  insufficient.^ 

§  1499.  On  an  Undertaking  Given  in  Claim  and  De- 
livery. 

Form  No.  S95. 

[TlTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  heretofore  this  plaintiff  commenced   an  action  in  the 

court,  against  A.    B.,  to  recover  possession  of    specific 

personal  property. 

II.  That  in  the  course  of  said  action  such  proceedings  of 
claim  and   delivery  under  and  pursuant  to  the  statute  were  had, 

that  on  the  day  of    ,    18..,   the    defendants 

made  and  delivered  to  the  sheriff  for  the  use  of  this  plaintiff, 
pursuant  to  the  statute,  their  written  undertaking,  of  which 
the  following  is  a  copy  [copy  of  the  undertaking]. 

III.  That  the  personal  property  referred  to  in  said  under- 
taking was  delivered  [or  released]  to  the  said  A.  B.,  defendant 
in  said  action,  pursuant  to  said  undertaking,  and  to  a  requisi- 
tion of  said  A.  B.,  defendant  in  said  action,  made  pursuant  to 
law,  and  said  undertaking  was  thereupon  delivered  to  this 
plaintiff. 

IV.  That  such  proceedings  were  afterwards  had,  that  on  the 

........  day  of   ,  18..,  a  verdict  in   the   superior    court 

of  the  county  of  was  rendered  against  the  said  A.  B., 

wherein  the  value  of  the  said  property  was  found  to  be 

dollars,   whereupon  judgment  was  rendered  against  A.  B.,    the 

»  Cruvt  V.  Phillips,  7  Abb.  Pr.  205.         «  Williamson  v.  BlatUn,  9  Cal.  500. 
'McMillan  v.  U>ina,    18   ChI.  8^9;         «  Id. 
Gregory  v.  Levy,  12  Barb.  610.  'i'altner  v.  Melvin,  6  Cal.  651. 


§   1505.  UNDERTAKINGS,  BONDS,  ETC.  575 

defendant  therein,  that  the  plaintiff  recover  possession  of  said 

property,  or  the  sum  of dollars,  in  case  a  delivery  could 

not  be  had. 

V.  That  the  defendant  has  not  returned  said  property,  nor 
otherwise  paid  or  satisfied  said  ju<lgraent. 

VI.  ["^tate  demand,  where  that  is  necessary.] 

VII.  That  this  plaintiff  thereafter  caused  execution  to  be  is- 
sued on  said  jungment  against  the  said  defendant,  A.  B.,  which 
execution  has  been  returned  wholly  unsatisfied. 

VIII.  That  the  defendant  has  not  paid  said  judgment,  nor  any 
part  thereof. 

[D  KM  AND  OF  JUDQMBNT.] 

§  1500.  Action  by  Assigues.— In  an  action  by  the  assignee 
of  an  undertaking  given  in  proceedings  of  claim  and  delivery,  it 
is  sufficient,  byway  of  showing  plaintiff 's  title,  to  allege  that  the 
undertaking  was  duly  assigned,  etc.,  to  him,  without  alleging 
that  the  judgment  in  the  action  was  also  assigneil.^  When  the 
action  is  brought  by  the  assignees  of  only  a  portion  of  the  prom- 
isees, there  is  a  defect  of  parties ;  all  the  promisees  should  be 
represented,^  Where  a  replevin  bond  substantially  conforms  to 
the  act,  the  assignee  of  the  defendants  can  maintain  an  action 
upon  it.3 

§  1501.  Consideration. — The  averment  of  delivery  and  re- 
lease is  an  averment  of  consideration,  and  must  be  stated,  even  if 
the  undertaking  was  under  seal,*  But  if  the  undertaking  recites 
the  performance  of  the  condition,  a  complaint  setting  forth  the  un- 
dertaking need  not  also  aver  performance. ^ 

§  1502.  Delivery  and  Release. — It  must  be  averred  that 
the  property  was  delivered  or  released.® 

§  1503.  Demand. — No  demand  need  be  averred  where  judg- 
ment was  returned  unsatisfit^d.'^ 

§  1504.  Facts  Authorizing  Issue  of  Process. — The  com- 
plaint need  not  aver  that  it  was  taken  in  pursuance  of  the  statute. 
It  is  enough  that  the  instrument  set  forth  is  in  accordance  with 
the  statute.^ 

§  1505.  Interest  Aivarded. — ^Upon  an  undertaking  given 
in  an   action  of  claim  and  delivery,  for  the  payment  of  a  fixed 

*  Mor«nge  v.  Mudge,  6  Abb.  Pr.  «  Palmer  v.  Melvin,  6  CrI.  651 ; 
243.  WiliiHmson  v.  Bhtttan,  9  Id.  500. 

2  Bowdoin  V.  Coleman,  6Diier,  182;  'Bowdoinv.  ColeniHn.   3   Abb.  Pr. 

8  Abb.  Pr.  431.  431 ;  Slack  v.  Heath,  1  Id.  331. 

»  Win^atev.  Brooks,  3 Cal.  112.  «  McMillan  v.  DanH,   18  Cal.   339; 

♦  Nickerson  v.  Chalterton,  7  CaL  Shaw  v.  TobiHS.  3  N.  Y.  188;  Gregory 
56S.  V.  Levy,  12  Barb.  610. 

»  McMillan  v.  Dana,  18  Cal.  839. 


676  FORMS  OP  COMPLAINTS.  §    1506. 

sum,  and  not  conditioned  for  the  return  of  the  goods,  interest 
may  be  awarded  upon  the  amount  of  tlie  penalty  from  the  date 
of  judgment  in  the  original  action;  because  after  the  recovery 
the  sureties  are  in  default,  and  the  neglect  to  pay  puts  them  in 
the  wrong.  ^ 

§  1506.  Joint  Bond. — ^No  recovery  can  be  had  on  a  bond 
purporting  to  be  a  joint  bond  of  the  principal  and  sureties,  but 
signed  by  the  latter  only.*  Otherwise,  as  to  undertakings  under 
our  system.  They  are  original  and  independent  contracts  on 
the  part  of  the  sureties,  and  do  not  require  the  signature  of  the 
principal.-' 

§  1507.  Ju-^gment  in  the  Al'-ernative. — The  complaint 
should  show  that  judgment  was  rendered  in  the  altemMtive.* 
It  must  be  averred  that  neither  had  the  property  been  returned 
nor  the  specified  value  thereof,  as  fixed  by  the  judgment  in  the 
original  suit  paid.^ 

§  1508.  Lia^'jility  of  Sureties. — ^Where  the  plaintiff,  in  re- 
plevin gives  the  statutory  undertaking,  and  takes  possession 
of  the  property  in  suit,  and  is  afterwards  nonsuited,  and  judg- 
ment entered  against  him  for  the  return  of  the  property  and  for 
costs,  his  sureties  are  liable  for  damages  sustained  by  defc  d- 
ant,  by  reason  of  a  failure  to  return  the  goods,  but  not  for  dam- 
ages for  the  original  taking  and  detention — the  value  of  the 
goods  not  having  been  found  by  the  jury.*  If  an  un  lertaking 
in  an  action  in  replevin  commenced  in  a  justice's  court  limits 
the  liability  of  the  persons  who  execute  it  to  a  judi^^ment  for  the 
return  of  the  property  rendered  by  the  justice,  and  such  judg- 
ment is  not  rendered  in  the  justice's  court,  a  recovery  can  not 
be  had  upon  the  undertaking,  even  if,  on  a-peal,  such  judg- 
ment is  rendered  by  the  county  court.'  Otherwise,  if  the  statu- 
tory form  of  the  undertaking  is  followed  ®  A  judgment  in  favor 
of  the  defendant  which  does  not  award  hira  a  return  of  the 
property,  does  not  impose  any  liability  upon  the  sureties.' 

§  1509.  Reference  to  Section  of  Act. — A  complaint  upon 
an  undertaking  given  under  the  provisions  of  a  statute,  which 
contains  no  other  description  of  the  instrument  than  an  allega- 
tion that  it  corresponds  with  the  provisions  of  such  statute,  is 
defective.^'*    The  material  portions  of  the  undertaking  should  be 

'  Emer«on  v.  Booth,  51  Barb.  40.  •  Ginica  v.  Atwood,  8  Cnl.  446. 

•  Citv  of  bacramento  v.  Duniap  14        ^  Milchum  v.  Stanton,  49   Cal.  302. 
Cal.  421.  »  Id. 

«M.  »Id. 

*  ^  it  kerson  v.  Ohatteraon,  7  Oal. 668.       "  Mills  v.  Gleason,  21  Cal.  274. 
•li. 


§   1512.  UNDERTAKINGS,  BONDS,  ETC.  577 

set  forth;  but  it  will  be  at  most  only  a  defect  of  form,  and 
objection  must  be  taken  by  demurrer.^ 

§  1510.  Value  of  Property. — The  complaint  docs  not  state 
facts  sufficient  to  constitute  a  cause  of  action,  unless  it  aver  that 
the  value  of  the  property  was  found  by  the  jury,  and  that  an 
alternative  judgment  was  rendered.^ 

§  1511.     On  ?»"  Undertaking  Given  in  Injunction. 

Form  JVo.  396. 
[TiTLK.] 

The  |)laiiitiff  complains,  and  alleges: 

I.  Tliat  on    the day   of ,  18  , . ,  in   an   acti'^n 

brought  by  C.  D.  against  tiiis  plaintiff,  an  injunction  issued 
out  of  this  court,  was  served  on  this  plaintiff,  enjoining  him 
from  [state  effect  of  the  injunction]. 

II.  That  upon  the  issuing  of  the  said  injunction,  the  defend- 
ants gave  an  undertaking  required  by  section  five  hundiod  and 
twenty-nine  of  the  code  of  civil  procedure  [or  by  law],  of  which 
the  following  is  a  copy  [copy  of  undertaking]. 

III.  That  such  proceedings  were  had  in  the  said  action  that 
it  was  finally  decided  by  the  court,  and  thereby  adjudged,  that 
the  said  C.  D.  was  not  entitled  to  the  said  injunction. 

IV.  That  the  damages   sustained  by   this  plaintiff,  by  reason 

of  the  said  injunction,  amounted  to  the  sum  of dollars, 

and  interest  thereon   from  the day  of ,  which 

the  court  on  that  day  awarded  to  this  plaintiff. 

V.  That  no  pa't  thereof  has  been  paid. 

[Demand  of  Judgment.] 

§  1512.  Damages. — Where  an  oflBctr  is  enjoined  from  pay- 
ing over  money  in  his  hands,  legal  interest  only  can  be  recov- 
ered as  damages  for  its  detention,  in  an  action  on  the  injunction 
bond. 3  To  recover  damages  for  the  wrongful  issuing  of  the 
writ,  it  was  held  that  the  amount  paid  to  counsel  as  a  fee  to 
procure  the  dissolution  of  the  injunction  was  properly  allowed 
as  part  of  the  damages.^  So  held  also  when  an  order  to  show 
cause  why  an  injunction  should  not  issue  was  made,  though  the 
fee  was  paid  after  the  return  of  the  order  to  show  cause,  pro- 
vided the  retainer  was  befv^re  that  date.* 

1  Mills  V.  Gleason,  21  Cal.274.     As  &  S.  180;  Pace  v.  Eamer,  1   Bos.  & 

to  mannfr  of  pleading  fii  such  oases,  V.  881,  n. 

consult  Bowddiii  v.  Coleman,  3  Abb.  *  (Jlnry  v.  Rolland,  24  Cal.  147, 

Pr.  431 ;  Slack  v.  Heath,    1    Id.  SHI ;  «  Lally  v.  Wise,  i>8  Cal,  639. 

ilHvnerv.  Clark,  7  Barb.  581 ;  Looniis  *  Ah  Thaie  v.  Quan   V\  au  et  al.,  8 

V. 'Brown,    16  Id.    325;    Gregory    v.  Cal.  216. 

Lew.  12  Id.  610;  Gould  v.  Watner,  3  »  Prader  v.  Grim,  13  Cal.  685k 
"Wend.  54;  Phillips  V.  Price,  3  Mau. 
EsTKK,  Vol.  1—37. 


678  FORMS  OF  COMPLAIN Ta  §   1513. 

§  1513.  Damages  must  be  Averred. — ^In  the  action  against 
the  sun  lies  on  an  injunction  bond,  the  condition  of  wiiich  is  that 
;the  plaintiffs  in  the  suit  for  whom  the  sureties  undertook  should 
ipay  all  damages  and  costs  that  should  be  awarded  against  the 
j)laintiff  by  virtue  of  the  issuing  of  said  injunction  by  any 
-competent  court,  and  the  complaint  did  not  aver  that  any  damages 
Shad  been  awarded,  it  held  that  such  complaint  is  fatally 
'defective.^ 

§  1514.  Enjoining  Payment  of  Money. — M.,  a  sheriff, 
had  in  his  hands  money  belonging  to  L.,  which  he  had  collected, 
on  an  execution  in  favor  of  L.  &  D.,  against  S.  W.  &  C.  com- 
menced an  action  against  M.  &  L.,  and  others  to  enjoin  M.  from 
paying  the  money  to  L.,  and  procured  a  preliminary  injunction, 
which  was  served  on  M.  alone,  but  L.  appeared  in  the  action  and 
defended.  The  injunction  bond  ran  to  all  the  defendants.  It 
was  held  that  L.  could  maintain  an  action  for  damages  on  the  in- 
junction bond.^ 

§  1515.  Obedience  to  Injunction. — Mere  obedience  upon 
notice  of  issuance  of  injunction  is  sufficient,  if  alleged.* 

§  1516.  Service  of  Injunction. — An  allegation  that  in- 
junction was  served  imports  a  legal  service,* 

§  1517.  Statement  of  Trial  on  Injunction. — It  is  suflBl- 
cient  to  allege  that  an  injunction  was  granted  by  a  court  or 
judge,  that  issues  were  joined  and  judgment  rendered. ^ 

§  1518.  Who  may  Join. — All  obhgees  on  an  injunction 
bond  may  join  as  plaintiffs,  whether  their  several  claims  be  sim- 
ilar or  not.* 

§  1519.  On  a  Bond  or  Undertaking,  Condition  only 
Set  Forth. 

Form  No.  S97. 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  Th:it  on  the  day  of  18..,   the  defendant 

covenanted  with  the  plaintiff,  under  his  hand  and  seal  to  pay  to 
the  plaintiff  the  sum  of  [state  the  penalty]. 

II.  That  said  obligation  was  upon  the  express  condition  there- 
under written,  that  if,  etc.  [set  forth  the  words  of  the  condition], 
the  said  obligation  was  to  be  void,  otherwise  to  remain  in  full 
force.  , 

III.  £Allege  breaches  as  in  other  cases.] 

[Demand  of  Judqmknt.] 

*  Tarpey  ▼.  Shillenberger,  10  Cal.  Hoffman  Steam  Coal  Co.,  15  Abb.  Pr. 
890.  78. 

»  ijiilly  v.  Wise,  28  Cal.  539.  *  Loomis  v.  Brown,  16  IJarb.  825. 

•  •JuiiiLerlaud  Coal  aud  Iron  Co.  v.        •  Id.  •  Id. 


§  1524.  UNDERTAKINGS.  BONDS,  ETa  679 

§  1520.  Breach  ot  Condition— The  Basis  of  the  Action. 
The  breach  of  the  cond  tions  of  a  penal  bond  constitutes,  in 
fait,  the  basis  of  the  plain. iff's  action,  and  it  should  be  assigned 
with  certainty  and  particularity,  so  as  to  show  the  injury.^  In 
general,  it  is  sufficient  to  allege  the  breach  in  the  terms  of  the 
condition  of  the  bond.' 

§  1521.  Notice  — Notice  to  the  representative  and  a  demand 
upon  liira  are  not  always  essential.^  It  is  not  necessary  to  aver 
no. ice  to  the  sureties,  nor  to  state  who  was  the  applicant  for  the 
order  for  prosecution.^ 

§  1522.  Parties. — In  an  action  on  a  bond  or  written  under- 
taking, there  can  be  no  constructive  parties  jointly  liable  with 
the  proper  obligors.' 

§  1523,  Penal  Bonds. — In  actions  on  penal  bonds,  the  com- 
plaint must  specifically  assign  the  breaches  for  which  the  action 
is  brought;^  thus,  on  a  bond  conditioned  that  a  party  shall  pay 
on  a  certain  contingency  or  on  demand,  or  for  an  uncertain 
sura,  brpaclies  must  be  assigned.'''  Also  a  bond  given  on  a  plea 
of  a  liile  before  a  justice. ^  But  not  a  bond  pa3'able  in  money 
by  installments.'  Nor  to  bonds  payable  in  money  only,  which 
may  be  brought  under  actions  on  written  instruments. 

§  1524.  On  Arbitration  Bond— Refusal  to  Comply  with 
Award. 

Form  No.  393. 
[Title] 
The  plaintiff  complains,  and  alleges : 

I.  That  in  consideration  of  certain  questions  in  difference 
between  plaintiff  and  defendant,  and  of  a  certain  bond  executed 
by  this  plaintiff  to  the  defendant,  the  defendant,  on   the  .... 

day  of ,  18...,  at ,  made  and  delivered  to  the 

plaintiff   an   undertaking,    conditioned  to   abide   the   award   of 

upon  said  question  of  difference ;  a  copy  of  which  un- 

undertaking  is  hereto  annexed,  marked  "  Exhibit  A." 

II.  That  said undertook  the  arbitrate  m  thereof  on 

the  ....  day  of ,  18...,  at ,  and  duly  published 

their  award  in  writing  upon  the  mattei:  submitted,   and  delivered 

;  »  Campbell  V.  Strong,  Hempst  265 ;  JIunro  v.  Alaire,  .2  Cai.  819;  Riitnsey 

t)ixun    V.    United    Stntes,    1    Brook,  v.    Matthews,  1  Bibb.    241;    Burnett 

177;    Postmaster-genoral  v.  Cross,  4  v.  WvIIp,  Hempst.  197;  and  see  Ha- 

Wash.  a  Ct.  32«.  Z'l  v."  Waters.  8  Craneh  C.   iX  fi82; 

2  Bers:er   v.   Williams.  4    McLean,  Western  Bank  v.  Sherwood,  29  Barb. 

677;  Gorman  v.  Lenox,  16  Pet  1 16.  8«3. 

«  People  V.  Rowland,  6  Barb.  449.  »  Nelson  v.  Bodtwiok.  6  TTill.  87. 

«  people  V.  Falconer,  2  Sandf.  81.  »  Patterson  v.  Parker.  2  Hill.  598. 

*  Linduav  V.  Flint  4  Cal.  8X.  •  Hnrmon  v.  Pedriek.   .S  B'.rb.    192; 

•  Baker   v.   Cornwall,  4   Ctil.    15;  Spaulding  v.  Millard,  17  Wend.  831. 


680  FOllilS  OF  COMPLAINTS.  §   1525. 

the  same  to  the  parties,  and  thereby  awarrlt-d  that  the  defend- 
ant sh  »uld  [state  terms  of  the  award],  a  copy  of  which  award  is 
hereto  annexed  asapait  of  tUis  complaint,  marked  *' Exhibit 
B." 

III.  That  the  plaint  ff  duly  performed  all  the  conditions  of 
said  bond  and  of  said  award  on  his  part. 

IV.  That  on  the day  of ,  18...,  notice  of  said 

award  was  given  to  the  defendant. 

V.  That  the  defendant  has  not  [strt^  the  breach]. 

[Dkmand  ofJudqmkvt] 
[Annex  copies  of  Exhibits  "A"  and  "B"  ]* 

§  1525.  Award  of  Payment  at  a  Future  Day. — ^Where 
the  award  directs  payment  at  a  future  day,  and,  pursuant  to 
authority  given  in  the  submission,  requires  the  debtor  to  give 
security  for  its  payment,  an  action  lies  upon  the  arbitration 
bond,  upon  the  refusal  to  give  security,  without  waiting  till  the 
time  of  payment.^ 

§  1526.  Assignment  of  Breach  for  Revoking  Arbitra- 
tor's Power. 

Form  No.  S99. 

That  thereafter,  and  before  the  matters  aforesaid  were  finally 
passed  upon  by  said  arbitrator,  the  defendants,  by  writing  un- 
der their  hands   and   seals,    delivered  to ,  revoked 

the  powers  of  the  arbitrators,    and   notified   said 

that  they  would  not  abide  by  the  award  of  said  arbitration  • 

§  1527.  On  a  Bond  for  the  Faithful  Accounting  of  an 
Agent. 

F«rm  No.  400, 
[Titlb] 

The  p'aintiff  complains,  and  alleges: 

I.  That  on  the day  of  ,  18...,  at , 

it  was  agreed  between  this  plaintiff  and  one  A.  B.,  that  the 
said  A.  B.  should  solicit  and  collect  subscriptions  for  a  [state 
what],  and  that  the  plaintiff  should  pay  to  the  said  A.  B.  [state 
terms  of  payment]  for  such  service,  and  that  the  said  A.  B. 
should  faithfully  account  to  this  plaintiff  for  all  [property]  in- 
trusted to  him,  and  should  faithfully  pay  over  all  moneys  col- 
lected by  him  under  authority  of  said  agreement. 

II.  That  in  consideration  of    said  agreement,  the  defendant 

1  For    authorities    upon  forms   of  arbitrator's  powers  before  the  submis- 

compiaiiits  in  such  actions,  see  Myers  sion    was  actually    made    a    rule    of 

V.  Dixon,  2  Hall,  45fi;  M'Kinstry  v.  court,  the  plaintiff  should  assign  the 

Solomons,  2  Johns.  57;  S.  C,  13  Id.  revocation  as  a  breach — not  the  non- 

.  27.  performance  of   the  award :  Frets  ▼. 

«  Bavne  v.  Morri?,  1  Wail.  97.  Frets,  1  Cow.  386;  William  v.  Maden, 

•  Where  the  defeadant  revoked  the  9  Wend.  240. 


§  1530.  UNDERTAKINGS,  BONDS,  ETQ  581 

made  and  delivered  to  the  plaintiff  an  undertaking  in  writing, 
under  his  hand  and  seal,  conditioned  to  tlie  faithful  perform- 
ance by  said  A.  B  of  the  terms  of  said  agreement  on  his  part ; 
a  copy  of  which  undertaicing  is  hereto  annexed,  marked  "Ex- 
hibit A." 

in.  That  thereafter  the  said  A.  B.  did  solicit,  collect,  and 
receive  divers  sums  of  money,  in  the  course  of  his  employment 
undtr  the  aforesaid  agreement,  which  suras  he  has  failed  to 
render  up,  account  for,  or  pay  over  to  the  plaintiff. 

IV.  That  on  the day  of    ,  18 . . ,  at , 

the  plaintiff  requested  the  said  A.  B.  to  account  for  and  pay 
over  to  the  plaintiff  such  sums,  and  thereupon  demanded  pay- 
ment from  him  of  the  same,  according  to  the  terms  of  said 
undertalcing. 

V.  That  no  part  thereof  has  been  paid. 

[Demand  of  Judgmekt.] 
[Annex  copy  «f  "  Exhihit  A."^ 

§  1528.  Essential  Averments— Request — Sale  and  Ac- 
counting.— Request  is  a  condition  piecedent  in  a  bond  to 
account  on  request,^  and  a  sale  must  be  averred,  with  a  refusal 
to  account  therefor.^ 

§  1529.     On  a  Bond  for  t'le  Fidelity  of  a  Clerk. 

Form  No.  401. 
[Title.] 

The  pla  ntiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18. .,  at ,  the 

plaintiff  being  then  about  to  employ  one  A.  B.  as  a  clerk,  the 
defendant  covenanted  with  the  plaintiff,  under  his  ha  d  and 
seal,  tliat  if  the  said  A.  B.  should  not  faithfully  perform  his 
duties  as  a  clerk  to  the  plaintiff,  or  should  fail  to  account  to 
the  plaintiff  for  all  money's,  evidences  of  debt,  or  other  prop- 
erty received  by  him  for  the  use  of  the  plnintiff,  the  defendant 
would  pny  to  the  plaintiff  whatever  loss  he  might  sustain  by 
reason  theieof,  not  exceeding dollars. 

II.  That  between  the day  of ,  18. .,  and  the 

day  of ,  18 . . ,  the  said  A.  B.  received  moneys 

and    other  property,  aninunting  to  the  value  of dollars, 

for  the  use  of  the  plaintiff,  for  which   he   has  not  accouutcd  to 

him. 

[Dkmath)  of  .Tudomekt.] 

§  1530.  A^pl!ca^.ion  of  Ben''. — Such  a  bond  applies  to  the 
honesty  of   tlie  clerk,  and    not  to  iiis  al)iliiy,  and  the  suietics  are 

1  Drtvi*  V.  ('>irv,  15  Q.  B.  418;  S  C,  69  Eiig.  Com.  L.  416. 
«  Wolfe  V.  Luyster,  1  Hall,  Itil. 


682  FOKMS  OP  COMPLAINTS.  §   1531. 

not  responsible  for  loss  arising  from  a  mere  mistake  ;*  unless 
tlie  ckik  conceals  deficiencies,  and  for  this  purpose  makes  false 
entries  in  the  books.' 

§  15.U.  Coiisideration. — Appointment  to  office  and  its  emol- 
uments is  a  sufficient  consideration  to  support  the  obligation  of 
sureties  for  fidelity.^ 

§  1532.  Faithful  Discharge  of  Duties. — la  a  suit  on  a 
bond  to  secure  faithful  performance  of  various  dutiesi  of  secre- 
tary and  treasurer  to  a  private  association,  if  the  defendant 
who  was  a  surety  (the  piincipa,!  being  dead),  craved  oyer  of  the 
bond  and  conditions,  and  pleaded  general  performance,  it  is 
sufficient.'*  Where  an  inhabitant  of  a  town  acted  as  justice  of 
the  peace,  and  gave  a  bond  with  sureties  for  the  fiithful  dis- 
charge of  his  duties  as  justice,  the  fact  that  no  law  required 
him  to  give  bond  would  not  affect  the  validity  of  the  instrument 
as  a  common-law  obligation.^ 

§  1533.    On  an  Official  Bond. 

Form  No.  409. 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant,  on  the  day  of ,  18..., 

at ,  made  and  delivered  his  bond  or  writing  obligatory, 

sealed  with  his  seal,  of  which  the  following  is  a  copy  [copy 
bond]. 

U.   [Set  forth  breach.] 

[Dkmattd  or  Jttdomkn-t.] 

§  1534.  Allegation  of  Breach— For  Neglect  of  Sheriff 
to  Levy. 

Form  No.  408. 

That  said  sheriff  did  not  execute  said  process,  but  although 
there  was  then  within  his  county  real  and  personal  property  of 
■which  lie  might  have  levied  the  moneys  thereby  directed  to  be 
levied,  he  neglected  and  refused  so  to  do,  whereby  the  plaintiff 
lost  iiis  said  debt. 

§  1535.  Allegation  of  Breach— For  Neglect  to  Sell 
after  Levy. 

Form  No.  404- 

That  the  said  sheriff  by  virtue  thereof  on  the day  of 

,  levied  on  tli'e  goods  of  said  A.  B.,  of  the  value  of 

dollars;  but  he  neglected  to  advertise  and  sell  the 

goods  so  levied  on  by  him  as     aforesaid,  and  no  part  of  the 

'  Union  Bank  v.  Closaey,  10  Johns.  *  Jackson  v.  Kundlet,  1  Woodb.  4!! 

271  M.  381. 

»  Id.  »  Williamson  v.    Wool^   87   Ala, 

•  United  States  t.  Linn,  15  Pet.  290.  238. 


§  1539.  UNDERTAKINGS,  BONDS,  ETC.  583 

moneys  directed  to  be  collected  on  the  relator's  said  execution, 
has  been  received  by  the  relator.^ 
§  1536.    Allegation  of  Breach — For  Neglect  to  Return. 

Form  No.  405, 

Who  by  virtue  thereof,  on  the  ....  day  of .,  le\ied  on 

the  goods  of   said  A.  B.,  of  the  value   of dollars;  but 

although  more  than  sixty  days  elapsed  after  its  delivery  to  him 
and  before  this  action,  wholly  neglected  and  failed  to  make  re- 
turn of  said  execution,  and  no  part  of  the  moneys  directed  to  b» 
collected  thereby  has  been  received  by  the  relator. 

§  1537.    Allegation  of  Breach  of  Treasurer's  Bond. 

Form  No.  406. 

That  said  treasurer    between   the  ....day  of ,  and 

the day   of ,  received   various   sums   of  money,  as 

such  treasurer,  amounting  to  about  the  sum  of dollars 

[being  a  part  of  the  tax  raised  in  his  county  for  the  year  ], 

and  that  he  fraudulently  and  in  breach  of  his  trust  converted  and 
appropriated  to  his  own  use  said  sum.'^ 

§  1538.  Bond — OfBcial. — In  an  action  upon  a  sheriff 's  bond, 
the  declaration  did  not  charge  the  sheriff  with  the  breach  of  his 
duty  in  the  execution  of  any  writ  or  process  in  which  the  real 
plaintiff  was  personally  interested  ;  but  with  a  neglect  or  refusal 
to  preserve  tlie  public  peace,  in  consequence  of  which  the  plaintiff 
suffered  great  wrong  and  injury  from  the  unlawful  violence  of  a 
mob,  it  was  ht'ld,  on  motion  in  arrest  of  judgment,  that  the  decla- 
ration did  not  show  a  cause  of  action.^ 

§  1539.  Breacb.must  be  Assigned. — In  a  declaration  upon 
a  covenant  for  general  performance  of  duty,  if  no  breach  be  as- 
signed, or  a  breach  which  is  bad,  as  not  being,  in  point  of  law, 
within  the  scope  of  the  covenant,  the  defect  is  fatal,  even 
after  verdict.'*  Where,  in  an  action  upon  a  sheriff's  bond,  the 
declaration  did  not  charge  the  sheriff  with  a  breach  of  his  duty 
in  the  executiDn  of  any  writ  or  process  in  which  the  real  plaint- 
iff was  personilly  interested,  but  with  a  neglect  or  refusal  to 
preserve  the  public  peace,  in  consequence  of  which  the  plaint- 
iff suffered   great  wrong  and  injury  from  the  un  awful  violence 

*  People  V.  Tpii  Eyck,  13  Wend,  448.  condition,  though  only  nominal  datn- 
This  f  rm  may  be  used  where  writ  WHS  aires  could  be  recovered  undnr  it: 
dplivered  to  thedenuty.     See  g  1543.  Albany  Dutch  Church   v.  Vedder,  14 

•  vVl  ere  tlie  condition  of  a  treiisurer's  W^nd.  Iiio. 

bond  was  that  lin  "should  keep  a  sep-  '  South  v.  Maryland,  18  How.  U.S. 

arale  account  in   the  bank  of  A„  as  3% 

such  treasurer,  of  all  moneys,"  etc.,  *  Minor  v.  Merchant's  Bank  of  Alex- 
it  wa«  held  tliata  breach  misjlitbe  ns-  andria,  1  Pet.  4rt,  K7;  compare  Suow 
signed  by  negativing  the  words  of  the  v.  Johusun,  1  Minn.  48, 


684  FORMS  OF  COMPLAINTS.  §   1540. 

of  a  mob ;  the  declaration  did  not  set  forth  a  sufficient  cause  of 
action  against  the  sheriff  and  his  sureties.^ 

§  1540.  Change  of  Parties  on  Bond. — Where  the  prin- 
cipal causes  his  name  to  be  stricken  from  a  bond  without  their 
knowledge  or  consent,  it  is  void  as  against  the  sureties. ^  But 
the  name  of  an  obligor  may  be  erased  and  a  new  obligor  in- 
serted by  consent,  of  all  parties,  without  making  the  bond  void.^ 

§  1541.  Collector's  Bond. — The  district  attorney  of  a  county 
has  the  authority,  of  his  own  volition,  with  or  without  instruc- 
tions from  the  controller  of  state,  county  court,  or  the  board  of 
supervisors  of  a  county,  to  bring  an  action  upon  the  official 
bond  of  the  tax  collector  of  a  county.'*  In  an  action  of  cove- 
nant brought  on  a  penal  bond  given  to  account  for  public 
moneys,  if  the  breach  assigned  is  the  non-performance  of  the 
condition,  the  count  will  be  adjudged  bad  on  demurrer.  The 
breach  assigned  must  be  the  non-payment  of  the  penalty.*  All 
the  money  due  on  a  tax  collector's  bond  may  be  recovered  in  a 
single  action  in  the  name  of  the  people  of  the  state,  although 
part  of  the  money  thus  due  may  belonaj  to  the  county  and  part 
to  the  state. ^  The  complaint  in  an  action  on  a  tax  collector's 
bond  need  not  aver  that  the  taxes  charged  on  the  assessment 
roll  were  legally  assessed.'  The  securities  on  the  official  bond 
of  a  sheriff  and  ex  officio  collector  of  the  revenue  are  liable  for 
an  act  of  the  latter  in  collecting  an  assessment  of  taxes  on  prop- 
erty not  subject  to  taxation.  ^ 

§  1542.  Constable. — An  action  on  the  official  bond  of  a 
constable  lies  primarily  upon  breach  of  the  condition  of  the 
bond,  whether  the  injury  for  which  suit  is  brought  be  a  trespass 
or  not,  the  result  of  the  non-feasance  or  misfeasance  of  the  offi- 
cer.^ In  an  action  against  sureties  on  a  constable's  bond,  in 
addition  to  the  allegation  that  the  officer  did  not  levy  the 
amo  int  of  an  execution,  to  take  the  body  of  the  defendant,  it 
must  be  alleged  that  the  defendant  had  property  which  might  have 
been  levied  upon,  or  that  his  body  could  have  been  found. ^° 

§  1543.  Constable's  Deputy. — In  the  absence  of  statutory 
provisions  as  to  the  appointment  of  deputies  by  constables,  the 

*  South  V.  State  of  Maryland,  18  bond,  was  raised  in  O'Neals  v.  Long, 
How.  U.  S  396.  4  Crunch,  60. 

*  Miller  v.  Stewart  9   Wheat.  702;  *  People  v.  Love,  25  Cal.  520. 
Hunt  V.    Adams,   6  Ma«9.   521 ;  Mar-  '  U.  S.  v.  Brown,  1  Paine,  412, 
tin  V.  Thomas.  24  How.  U.  S.  315.  «  People  v.  Love,  25  Cal.  520. 

*  Speake  V.  United  States,  9  Cranch,  '  Id. 

28.     The  question    whether  the  addi-        »  St.ite  v.  Shacklett,  37  Mo,  280. 
tlon  of  a  surety,  without  tha  knowl-        '  Van  Pelt  v.  Littler,  11  Cal.  194. 
edge  of  the  former  surety,  avoids  the        ^"  Lawtoa  v.  Irwin,  9  Wdud.  233. 


§   1550.  UNDERTAKINGS,  BONDS,  ETC.  585 

common-law  rule  applies,  and  constables  may    act  by   deputy, 
in  the  exercise  of  their  ministerial  functions.^ 

§  1544.  Copy  of  Bonds. — If  a  copy  of  the  bond  sued  on  \b 
set  out  in  the  complaint,  an  answer  denying  its  execution, 
which  is  not  verified,  admits  its  due  execution. ^ 

§  1545.  County  Assessor. — In  suit  upon  the  official  bond 
of  a  county  assessor,  wh)  had  received  a  certificate  of  election, 
given  bond,  and  entered  upon  his  duties,  neitner  the  principal 
nor  the  sureties  can  deny  the  official  character  of  the  assessor. 
Thej''  are  estopped  by  the  bond.^ 

§  1546.  Date  of  Bonds. — Where  the  date  of  a  surety  bond 
is  subsequent  to  the  appointment  of  the  principal  to  office,  the 
declaration  should  allege  that  the  money  collected  by  the  prin- 
cipal remained  in  his  hands  at  the  time  when  the  surety  bond 
was  executed.* 

§  1547.  Defect  in  Bonds. — If  there  is  a  defect  in  an  official 
bond  by  the  failure  of  the  principal  to  place  a  se  1  opposite  his 
name,  the  defect  will  not  defeat  a  recovery  thereon  as  against 
the  sureties,  if  the  defect  is  suggested  in  the  com  plaint.  ^ 

§  1548.  Delivery. — In  a  suit  on  a  bond,  delivery  must  be  al- 
leged ;  but  the  omission  to  allege  it  can  only  be  taken  advantage 
of  by  demurrer ;  it  is  cured  by  verdict.^  The  production  of  the 
bond  in  court  by  the  obligee,  is  sufficient  evidence  of  its  delivery.''^ 

§  15 19.  Execution  of  Bonds. — If  the  complaint  on  an 
official  bond  avers  the  due  execution  of  the  same  by  both  prin- 
cipal and  sureties,  and  the  answer  takes  issue  on  the  averment, 
and  the  verdict  and  julgtnent  are  for  plaintiff,  the  jmlgment 
will  not  be  disturbed  on  appeal  upon  the  judgment  roll,  on  the 
ground  that  what  purports  to  be  a  copy  of  the  bond  annexed  to 
the  complaint  does  not  contain  the  signature  of  the  principal.^ 
If  sureties  on  an  official  bond  sign  with  an  express  understand- 
ing with  the  principal  in  the  bond,  that  certain  other  persons, 
shall  sign  as  sureties,  and  that  unless  such  other  persons  sign, 
it  shall  not  be  delivered,  a  delivery  of  the  bond  to  the  obligee, 
without  the  signature  of  such  other  persons,  does  not  render  it 
invalid  as  to  the  sureties  who  do  sign.^ 

§  1550.  For  Selling  Ho  nestead. — A  compla  nt  against  a 
sheriff   and  his  sureties  for   selling  under  execution  the  home- 

1  .lobson   V.    Fennell,  35  Cal.  711.  *  Garcia  v.   De  Satrustegui,  4  Cat 

s  SHcramento   Co.  v.  Bird,  31  CuL  244. 

66.  '  Tidball  v.  Halley,  48  ChI.  610. 

»  People  V.  Jenkins,  17  Cal.  500.  '  Mendocino  Co.  v.  Morris,  32  Cal. 

*  Uiiiied  States  v.  Linn,  1  How.  U.  145. 

S.  104.  » Tidball  v.  Halley,  48  Cal.  610 

•  Sacramento  Co.  v.  Bird,  81  Cal.  66. 


68e  FORMS  OP  COMPLAINTa,  §   1551. 

stead  of  plaintiff,  which  sets  out  that  the  sheriff  was  in  pos- 
session of  a  certain  execution  against  the  plaintiff,  Richard  Eoe, 
under  which  he  sold  the  property,  and  averring  damages  in  the 
sum  of  two  thousand  dollars,  the  value  of  the  property,  is  in- 
sufficient, as  the  same  does  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action,  for  the  sheriff's  deed  conveys  nothing  if 
the  property  was  a  homestead.^ 

§  1551.  Judgment. — In  an  action  against  the  principal  and 
sureties  on  an  official  boifd,  the  court  should  first  fix  the  amount 
of  the  defalcation  of  or  recovery  from  the  former,  and  then 
proceed  with  a  separate  judgment  against  each  of  the  sureties 
for  the  full  amount  for  which  he  has  made  himself  liable,  and; 
that  each  shall  be  satisfied  by  the  collection  or  payment  of  such 
defalcation,  or  recovery  and  costs.^  A  judgment  for  damages 
against  an  officer  for  official  delinquency,  which  remains  unsat- 
isfied, will  not  prevent  a  subseque  t  action  on  the  official  bond.' 

§  1552.  Liai)ilities  of  Obligors. — After  a  bond  has  bern 
received  and  acted  on  by  the  county  officers,  the  oblgors  are 
liable  as  if  it  had  been  approved  ;  but  this  liability  applies  only 
to  the  duties  properly  appertaining  to  his  office  as  such  and  not 
to  the  duties  belonging  to  a  distinct  office,  with  the  execution 
of  which  he  may  charged.*  If  the  penal  sum  is  changed  in 
an  official  bonl  after  the  principal  obligor  has  executed  the 
same,  and  he  then  forwards  it  for  approval,  he  is  liable  on  the 
bond  as  approved.^  The  liability  is  several  as  well  as  joint,  un- 
less expressed  to  be  only  joint,  and  the  plaintiff  may  sue  one 
or  both  sureties.^  The  sureties  on  a  sheriff' s  bond  are  not  lia- 
ble for  his  acts  or  omissions  in  the  service  of  a  precept  which  by, 
law  he  was  not  authorized  to  serve. '^ 

§  1553.  Marshal's  Bond. — In  an  action  on  a  marshal's 
bond,  it  is  not  necessary  to  aver  that  the  penalty  has  not  been 
paid.  The  usual  averment  of  the  breach  of  the  condition  is 
sufficient.^  To  an  action  on  a  marshal's  bond,  for  taking  insuffi- 
cient security  on  a  replevin  bond,  a  plea  in  bar  that  a  levy  was 
luade  on  goods,  and  chattels,  lauds,  and  tenements,  sufficient  to 
satisfy  the  judgment,  is  good.^ 

§  1554.  Ministerial  Duties. — It  is  not  only  for  a  breach 
of  his  duty  in  the  execution   of  his  ministerial  offices,  that  the 

1  Kendall  v.  Clark,  10  Qal.  18,  "<  Dune  v.  Gillmore,  51  Me.  544. 

*  f'eople  V.  li'oiit-y.  29  Cal.  fi42.  *  Sperring    v.  Tavlor,    2    McLean, 
»  Siate  V.  Kniltscliiiitt,  4  Nev,  178.  8fi2;  coinpMre    Hazle    v.    Waters,    8 

*  People  V.  Edwaid^s,  9  Cal.  28ti.  CrHUfh  C.  Ct.  4i:0. 

»  People  V.  IvMcehiiul,   81    Cal.  2S8.        »  Sedam  v.  Taylor,  8  McLean.  547. 

*  Monuige  v.  Mudge,  6  Abb.  Pr.243. 


§   1561.  UNDBBTAKINGS,  BONDS,  ETC.  587 

sheriff  and  his  sureties  are  liable  upon  his  hond.^  He  should, 
not  be  required  to  come  prepared  tc  justify  his  whole  official 
conduct.^ 

§  1555.  I^'s'Qln<3,er  of  Causes  of  Ac.t'oti. — a  cause  of  ac- 
tion on  an  offitMal  bond  ag:d  st  the  principal  and  h'S  sureties  can 
not  be  united  with  a  cause  o£  action  for  damages  against  the  prin. 
cipal  alone. ^ 

§  155^.  Non-payment  oT  Mo|a9y. — Declarinor  on  a  shpvifl's 
bond  for  the  non-payment  of  money  received  by  him  for  military 
fines,  it  is  not  necessary  to  name  who  paid  tlie  money  ti*  hiiu,  or 
issued  the  warrants  on  which  it  was  collected ;  a  ref ei  ejr.ce  to  tife. 
statute  makes  the  breach  certain  enough.^ 

§  1557.  Notice, — No  averment  of  notice  to  the  defendant  is 
requisite  in  the  complaint,  where  the  matters  a-^signed  as  breaches 
lie  as  much  in  the  knowledge  of  one  party  as  t!ie  other.* 

§  1558.  lie  reiver's  Soiid.  —  Uhe  sureties  on  a  receiver'% 
bond  are  only  bound  from  the  da're  of  the  bond ;  and  if  the  bond 
bears  date  some  months  after  the  of^cial,  term  of  the  receiver 
commenced,  the  declaration  is  defective  if  it  omits  to  show  the 
receipt  of  the  money  after  the  date  of  thp  bond,  and  before  the 
expiration  of  his  official  term  ^  A  declaj-ation  which  charged  a 
receiver  of  public  moneys  with  not,  paying  over  moneys  which 
came  into  his  hands  the  day  after  his  bond  expired,  is  bad  on 
demurrer.' 

§  1559.  Req^uest  or  I?emand. — Where  a  county  treasurer 
has  embezzle  1  and  converted  money  of  tlie  county  it  is  not 
necessary  for  the  supervisors  to  make  a  request  or  demand  before 
a  suit  on  his  bond.^ 

§  1560.  Rataining  Comtnlssiong. — In  an  action  on  an 
official  bond  of  a  county  treasurer,  if  the  com  )laint  avers  only  a 
breach  by  a  failure  of  the  treasurer  to  keep  the  n^ oney  in  the 
county  safe,  and  by  a  withdrawal  of  the  same  and  conversion  to 
his  own  use,  a  recovery  can  not  be  had  for  a  failure  of  the 
treasurer  to  pay  into  the  treasury  his  commissions  retained  on 
payments  made  to  the  state. ^ 

§  1661.  Retaining  Money. — An  averment  in  a  complaint 
on  a  county  treasurer's  official  bond  that  he  receiyed  money  be- 

*  South  V.  Maryland,  18  How.  IT.  S.  Tomlinson  v.  Rowe,  Hill  &  D.  Supp, 
89*5.  410. 

'  P«>ople  V.    Brush.  «  Wend.  454;        *  U.S.  v.  Spencer,  2  McLean  405. 
Po<.ple  V.  Pvussel  .  4  Id.  570.  '  Id. 

•State    V.     Kiuit^chnitt,     4    Nev,        *  Supervisors  of  AllegHny    v.  Van 

178.  Carnnen.  3  WVnd   48. 

*  People  V.  B-nsh,  d  Wend.  454.  *  S  icrameuto   County   v.   Bird,  81 
6  Peopie  V.  Ku wards,  9  (Jal.  292.  See  Cal.  oti. 


688  FORMS  OF  COMPLAINTS.  §   1562. 

longino;  to  the  county  and  retains  it,  and  refuses  to  deliver  it  to 
his  successor  in  office,  is  a  sufficient  averment  of  a  breach  of  its 
conditions.^ 

§  1562.  Treasurer's  Bond. — A  complaint  in  an  action 
against  a  treasurer,  for  a  failure  to  pay  his  successor  money 
which  came  into  his  hands,  sh  uld  allege  that  it  remained  in 
his  hands  at  the  expiration  of  his  term.''  And  wheie  the  treas- 
urer has  paid  over  to  his  successor  the  amount  found  due 
against  him,  he  is  still  liable  for  all  moneys  actually  received  by 
him  as  such  treasurer,  and  by  mistake  not  charged  to  him  in 
such  accounting.3  The  liability  of  the  sureties  continues  till 
he  has  rendered  a  just  and  true  account  of  such  moneys.* 

§  1563.  Trsspass. — A  complaint  in  an  action  against  a 
sheriff  and  his  sureties,  for  an  alleged  trespass  of  the  sheriff, 
should  allege  that  the  bond  was  the  sheriff's  official  bon(^,  and 
set  out  enough  of  itf;  contents  to  show  that  those  who  signed  it 
were  bound  to  indemnify  parties  injured  by  sheriff's  mal- 
feasance.^  la  trespass  for  taking  goods,  against  a  ftheriff  who 
justified  under  a  writ  of  attachment  against  a  third  person,  he 
called  as  a  witness  his  deputy,  who  stated  that  he  served  the  at- 
tachment, and  related  certain  conversation  between  himself  and 
the  plaintiff.  On  cross-examination,  he  stated  that  "  he  was 
deputy  sheriff,  and  under  bonds  to  the  sheriff."  Whereupon 
plaintiff  moved  to  strike  out  his  testimony  on  the  ground  of  in- 
terest; it  was  held  that  the  motion  was  properly  denied,  as 
from  the  answer  it  was  not  certain  that  the  character  of  his 
bonds  was  such  as  to  make  him  interested.*  If  the  complaint 
in  an  action  against  a  sheriff  and  his  official  bondsmen  alleges 
only  a  cause  of  action  against  him  as  a  trespasser,  and  against 
his  sureties  as  signers  of  the  bond,  and  not  otherwise,  t  lere  is  a 
misjoinder  of  cause  of  action.'^  A  complaint  iu  an  action 
against  a  sheriff  and  his  sureties  for  an  alleged  trespass  of  the 
sheriff,  which  merely  avers  that  the  sureties  are  the  securities  on 
his  official  bond,  and  that  the  same  was  duly  filed,  executed, 
and  recorded,  does  not  state  a  cause  of  action  on  the  bond.® 
In  an  action  on  a  replevin  bond  the  defendant's  liability  is  lim- 
ited to  the  damage  sustained  by  a  failure  to  return  the  prop- 
erty.' 

*  Mendocino  County  v.  Morris,  32  •Ghirsrdolh'v.  Bonrland,  82Ca1.585. 
Cal.   145.  «  Puwdw.  Ellis,  22  Cal.  ttoO. 

2Pi<'KHtt  V.  Sut".  24  Ind.  360.  '  Guirardolli  v.   Bourlaud,  <J2   Cal. 

*  Jetfctrsou  CoUaty  V.  Joues,  19  Wis.  585. 
51.  «  Id. 

*  Id.  •  Hunt  V.  Robinson,  11  Cal.  262. 


§   150(J.  "WARRANTIES  OP  CHATTELS.  689 


CHAPTER    X. 

ON  WARRVNTIES  OF  CHATTELS, 

§  1564.     Warranty  of  Title. 

Form  No.  407, 
[TiTLK.] 

Tlie  plaintiff  complains,  and  alleges : 

I.  That  on   the  ....  day  of ,  18..,  at ,  the 

defendant  sold  to  the  plaintiff  [state  the  article  sold],  for  

dollars. 

II.  That  by  said  contract  of  sale  it  was  understood  by  the 
plaintiff  and  the  defendantto  be,  and  it  was  a  part  of  the  terras  and 
consideration  of  said  contract  of  sale,  that  the  defendant  had  the 
lawful  ri,2fht  and  title  to  so  sell,  and  to  transfer  the  ownership  of 
said  g'>ods  to  the  plaintiff. 

III.  That  the  defendant  had,  in  fact,  no  right  or  title  to  sell  or 
dis!H)se  of  said  goods. 

IV.  Tliat  one  E.  F.  then  was  the  owner  of  said  goods,  and 
afterwards,  on  the  ....  day  of ,  18..,  he  demanded  pos- 
session of  the  same  from  the  plaintiff ;  and  the  plaintiff  was  com- 
pelled, and  did  then  deliver  them  up  to  E.  F.,  and  they  were 
wholly  lost  to  the  plaintiff. 

V.  That  by  reason  of  the  premises  the  plaintiff  was  misled  and 
injured,  to  his  damage dollars. 

[Demand  of  Judgment.]* 

§  1565.  Sales  by  Auctioneer. — ^There  seems  to  be  a  doubt 
whether  in  an  ordinary  sale  of  goods  by  auction,  an  auctioneer 
has  any  right  or  authority  to  warrant  goods  sold  by  him,  in  the 
absence  of  any  express  authority  from  his  principal  to  do  so,  and 
without  proof  of  some  known  and  established  usage  of  trade  from 
which  an  authority  can  be  implied. ^  It  may  be  accepted  gener- 
rally  as  the  true  doctrine  t  lat  they  are  special  agents  having 
authority  to  sell,  and  not  to  warrant.^ 

§  1566.  Effect  of  General  Warranty. — A  general  war- 
ranty does  not  extend  to  defects  inconsistent  therewith,  of  which 
the  buyer  was  then  aware,  or  which  were  then  easily  decernible 
by  him  without  the  exercise  of  peculiar  skill,  but  it  extends  to  all 
other  defects.* 

*  For  the  provisiona  of  the  Califor-  *  The  Monte  Allegre,  9  Wheat.  616, 

nia  civil  code  relating  to    warranty  or  647 ;   see  Dent  v.  McGrath,   8  Bush 

chattels,  see  sees.  1763-1778.  (K^v.),  174;  see  also  Civil  Code  Cal., 

«  See  Upton  v.  Suffolk  Co.  Mills,  11  sees.  1765,  1798. 

Cush.  (Mass.)  589 ;  Blood  v.  Fr enoh,  9  »  Ci\  11  Codo  Cal.,  sec.  1778. 
Gray,  iy7. 


590  FORMS  OP  COMPLAINTS.  f  1667. 

§  1567.  Imrjlied  Warranty  of  Title. — TThere  the  vendor 
of  chattels  in  his  possession  gives  a  written  bill  of  sale  contain- 
ing no  covenant  of  warranty,  there  is  an  implied  warranty  of  title.* 
The  vendor  in  possession  warrants  the  goods  by  implication ;  un- 
less at  the  time  he  expressly  disavows  an  intent  to  do  so.^  But  if 
out  of  the  possession  of  the  vendor,  in  the  absence  of  fraud,  the 
buyer  takes  at  his  own  risk.^  The  use  of  a  certain  name  in  a 
sale  note  for  the  goods  sold  is  a  warranty  that  they  besr  that 
name.*  The  complaint  need  not  aver  the  warranty,  for  this  im- 
plied warranty  is  an  inference  of  law.' 

§  1568.  Judicial  Sale. — Upon  a  judicial  sale,  the  only  war- 
ranty implied  is  that  the  seller  does  not  know  that  the  sale  will 
not  pass  a  good  title  to  the  property.^ 

§  1569.  Measure  of  Damages. — In  an  action  upon  an  im- 
plied warranty  of  title  to  persoaul  property,  where  a  judgment 
in  trover  has  been  obtained  against  the  purchaser,  the  measure 
of  damages  is  the  damages  and  costs  recovered  by  the  true 
owner  with  interest  thereon.'  Bat  where  the  goods  are  re- 
plevied of  the  buyer,  their  value  alone,  and  not  damagfes  for  their 
detention,  nor  attorneys'  fees  paid  by  him  for  defending  the 
title,  is  held  to  be  the  measure  of  damages.^ 

§  1570.  Money. — On  an  exchange  of  money,  each  party 
thereby  warrants  the   genuineness  of  the  money  given  by  him.* 

§  1571.  Siill— Implied  Warranty  of.— Wuen  a  skiled 
laborer,  artisan,  or  artist  is  employed,  there  is  on  his  part  an 
implied  warranty  that  he  is  of  skill  reasonably  competent  to  the 
task  he  undertakes.*" 

§  1572.  Waiver  of  Warranty. — The  complaint  in  an 
action  to  recover  the  price  of  a  machine,  sold  with  a  warranty, 
under  an  agreement  that  the  continued  use  of  the  machine  by 
the  vendee  should  be  regarded  as  a  waiver  of  the  warranty, 
need  not  allege  that  the  machine  corresponded  with  the  war- 
ranty if  it  avers  the  continued  use  of  it  by  the  vendee." 

§  1573.  Warranty  of  Title. — If  the  seller  has  possession 
of  the  article,  and  sells  it  as  his  own  and  not  as  agent  for  an- 
other, and  for  a  fair  price,  he  is  understood  to  warrant  the  title.** 

»  Miller  v.  Van  Tassel,  24  Cal.  458 ;  »  Blasdale  v.  Babcook,  1  Jobns.  617; 

Gross  V.  Kierski,  41  Id.  111.  Armstrong  v.  Percy,  6  Wend,  686. 

•  Miller  v.  Van  Tassel.  24  Cal.  458;  *Id.;  but  see  llewis  v.  Peakp,  7 
Kew  V.  Barber,  3  C<)W.  272.  Taunt.    152;  see,    also,    Polhemm  v. 

«8  Kent  (5th   ed.),   478;  MeCov  v.  Herman,  45  Cal.  578. 
Artoher.  3  Barb.  323;  Edick  v.  Crim,         "Civil  Code  Cal.,  sec.  1807. 
10  Id.  445.  i^oKobinson'sPr.  707. 

«  Flint  V.  Lyon,  4  Cal.  17.  "  Br«ga:  v.  Bamberj^er,  23  Ind.  198. 

»  Vnn  Snntv.  on  Pi.  287.  »  2  Kent's  Com.  478. 

*  Civil  Code  CaU  sec  1777. 


§   1577.  WARRANTIES  OP  CHATTELS.  591 

In  New  York,  a  warranty  of  title  is  implied  from  an  unqnalifiud 
saie.^  And  it  extends  to  the  riiiht  to  the  use  of  the  thintr  sold, 
e.  g.y  a  patented  article.^  But  it  arises  only  in  ca^^es  where  the 
vendor  is  in  possession. ^  In  every  sale  of  personal  property, 
except  a  judicial  sale,  there  is  implied  warranty  of  title  or  of 
peaeealile  posscs'^ion.* 

§  1574.  Warranty  by  Agent. — An  agent,  whether  general 
or  special,  who  is  authorized  to  sell  personal  property,  is  pre- 
sumed to  possess  the  power  of  warranting  its  quality  and  con- 
dition, unless  the  contrary  appear.^  So  an  agent,  employed  to 
sell  negotiable  paper,  may,  in  the  absence  of  any  limitation  of 
his  authoiity,  represent  it  as  a  business  note,  an<l  valid. ^ 

§  1575.  Warranty,  on  Sale  of  Written  Instrument. — One 
•who  sells  or  agrees  to  sell  an  instrument  purporting  to  bind  any 
one  to  the  performance  of  an  act,  thereby  warrants  that  he  has 
no  knowledge  of  any  facts  which  tend  to  prove  it  worthless, 
such  as  the  insolvency  of  any  of  the  parties  thereto,  where  that 
is  mater  al,  the  extinction  of  its  obligations,  or  its  invalidity  for 
any  cause.' 

§  1576.  Warranty  by  Seller. — One  who  sells  or  agrees  to 
sell  personal  property,  knowing  that  the  buyer  relies  on  his 
advice  or  judgment,  thereby  warrants  to  the  bu^-er  that  neither 
the  seller  nor  any  agent  employed  by  him  in  the  transaction 
knows  the  existence  of  any  fact  concerning  the  thing  sold  which 
would,  to  his  knowledge,  destroy  the  buyer's  iuducemeut  to  buy.^ 

§  1577.     On  Warranty  of  Quality. 

Foi-m  No.  408. 
[Title  ] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18. .,  at ,    the 

defendant  warranted  a  steam  engine  to  be  in  good  order,  and 
thereby  induced  the  plaintiff  to  purchase  the  same  of  him,  and 
to  pay  to  him dollars  therefor. 

II.  That  the  said  steam  engine  was  not  then  in  good  order, 
whereby  plaintiff  was  damaged  in  the  sum  of dollars. 

[DSMAKD  OF  Judgment.] 

iCHrman    v.   Trude,  25    How.  Pr.  8  kelson  v.   Cowin?.  6    Hill.    836; 

440;  Scnintonv.  Clark,  39  Barb.  273;  Tice  v.  Gallop,  5   N.   Y.   (S.   C.)61; 

and  sf-e    Sweetman  v.  Prince,  26  N.  Palmer  v.  Haii-h.  46    Mo.   585;    see 

Y.  2-24.  Bryant  v.  Moore.  26  Mc  84. 

*  Carman  V.  Trude,  25  HoMfr.Pr.  440.  *  Ferguson    v.  Humilton,  35  Barb. 
•S.ranton  V.  Clark,  39  Barb  273.  427,442;  Fenn   v.   Harri>on,  4   T.  R. 

*  Portft  V.  United  States,  Dev.  57;  177;  but  see  Lipscomb  v.  Kilrell,  11 
see  Puckett  v.  United  States,  LI.  103.     Humph.  256. 

«pe  Civil  Code.   sec.  1765;   Gross   v.        ^  Civil  Code  Cal.,  sec.  1774. 
Kierski,  41  Cal.  111.  »  Civil  Code  Cal.,  sec.  1767. 


692  FORMS  OF  COMPLAINTS.  §    1578. 

§  1578.  Assignment  of  Breach. — The  agreement  to  take 
back  property,  sold  under  a  warranty  of  soundness,  but  which 
proved  unsound,  or  whereby  defendant  agreed  to  pay  a  sura  of 
money  in  consideration  of  said  unsoundness  and  consequent  re- 
scission of  sale,  does  not  require  assignment  of  a  special  breach, 
within  the  meaning  of  the  code.^ 

§  1579.  Averment  of  Warranty.— A  general  averment  of 
warranty  is  sufficient,  as  that  the  seller  warranted  the  article  to  be 
of  good  quality. 2 

§  1580.  Caveat  Emptor. — That  the  buyer  must  take  care  or 
be  on  his  guard, ^  is  a  leading  maxim  of  the  law  relating  to  the 
contract  of  sale ;  and  its  application  is  not  affected  by  the  circum- 
stances that  the  price  is  such  as  is  usually  given  for  a  sound  com- 
modity.'* If  the  vendor  warrants  the  quality  of  the  articles  he 
sells,  he  is  bound  to  deliver  them  of  the  stipulated  quality,  and 
the  examination  and  selection  of  some  of  the  articles  by  the  ven- 
dee when  they  are  delivered,  does  not  amount  to  a  waiver  of  the 
contract. 5 

§  1581.  Damages  on  Breach. — Under  the  forms  of  pleading 
at  common  law,  the  vendee  of  chattels  sold  with  a  warranty  of 
title  could,  on  a  breach  of  the  warranty,  recover  damages  in  as- 
sumpsit, or  he  might  sue  in  an  action  on  the  case  for  deceit,  if 
there  had  been  deceit,  as  well  as  warranty  of  title ;  but,  in  the 
first  case,  he  must  aver  specially  that  the  defendant  warranted  his 
title  to  the  property,  and  that  a  breach  of  the  warranty  had  oc- 
curred, and  in  the  latter,  that  the  defendant  falsely  or  fiaudu- 
lently  represented  himself  to  be  the  owner  of  the  property,  and 
that  he  knew  his  representations  were  false.* 

§  1582.  Damages,  Measure  of. — When  the  vendor  of  per- 
sonal property  is  sued  for  a  failure  of  title,  the  measure  of  dam- 
ages is  the  price  paid  by  the  plaintiff,''' 

§  1583.  Executory  Contract. — An  executory  contract  for 
the  sale  of  corn  requires  that  it  shall  be  in  good  and  marketable 
condition,  without  express  words  to  that  effect.®  A  contract  to 
deliver  to  the  defendants,  who  were  manufacturers  of  barrels 
and  staves,  a  certain  quantity  of  stave    bolts,  was   held  to  re- 

*  Stone  V.  Watson,  37  Ala.  279.  801.    As  to  warranty  on  the  sale  of 

'  Hoe  V.  !3  inborn,  21  N.Y.  552.  chattels,  see  sees.  1763-1786,   inclu- 

«  Hob.  99;  Co.  Lit.  106,  a;  2  Inst,  sivc,  Cal.  Civil  Code. 

714;  Broom's  Max.  605.  «  Miller  v.  Van  Tassel,  24  Cal.  458; 

*2  Steph.  Coin.  826;  Cro.  Jac.  2;  Polhemus  v.  Hciman,  44  Id  573. 

Harjrnus    v.    Stone,    1    Seld,    88;   2  '  Arthur  v.  Moss,  1  Or.  19:^. 

Wood's   Lect.   2ol  ;   2  Kent's   Com.  «  Peck  v.  Armstrong,  38  B>irb.  215; 

478  ;  1  Story's  Eq.  Jur.  212.  and  see  Koop  v.  Handy,  41  Id.  454. 
»  WiUings  v.  Cousequa,  Pet.  C.  Ct. 


§   1588.  WARRANTIES  OP  CHATTELS.  593 

quire  a  delivery  of  bolts  of  a  jrood  merchantable  quality,  and 
suitable  for  the  purposes  for  which  they  were  intended.^  A 
contract  for  the  sale  of  "oxalic  acid,"  even  when  the  seller  is 
not  the  manufacturer,  and  at  the  time  of  contracting  expressly 
declines  all  responsibility  as  to  the  quality,  and  the  buyer  has 
an  opportunity  of  inspecting  it,  and  no  fraud  exists,  is  not  com- 
plied with  bv  the  delivery  of  an  article  which  does  not  in  com- 
mercial language  come  properly  within  the  description  of 
"  oxalic  acid. "2 

§  1584.  Fraud  need  not  be  Alleged. — No  averment  or 
knowledge  of  fraud  is  necessary  to  support  this  action. ^  Such 
an  allegation  sounds  in  tort.*  And  if  inserted  in  the  complaint, 5 
the  plaintiff  may  be  compelled  to  elect  on  the  trial  between  the 
two  grounds  of  liability.^ 

§  1585.  Implied  Warranty. — On  a  sale  of  an  existing 
article,  tliere  is  no  implied  warranty  that  t'le  article  is  suitable 
for  the  purpose  for  which  it  was  purchased.'^  In  every  agree- 
ment for  the  future  sale  of  merchandise,  there  is  an  implied 
warranty  til  at  it  shall  be  merchantable. ^  So  when  one  sells  an 
article  of  his  own  manufacture,  there  is  an  implied  warranty 
that  the  article  is  free  from  any  defect  produced  by  the  manu- 
facturitis:  process  itself;  and  where  the  defect  is  in  the  materials 
employed,  the  warranty  is  implied  only  where  he  is  shown  or 
may  l»e  presumed  to  have  known  the  defect.^ 

§  1586.  Qialit/,  ho^  A/arred. — Tiie  unsoind  condition 
of  the  chattel  sliould  be  averred  according  to  the  fact,  in  direct 
and  positive  terms,  and  if  valueless,  that  it  was  worth  nothing, 
and  was  of  no  value.  ^° 

§  1587.  Sale  by  Sample. — On  a  sale  by  sample  there  is  an 
implied  warranty  that  the. article  shall  correspond  with  the  sam- 
ple; but  an  examination  of  samples,  wlien  there  is  an  express 
warran;y,  is  not  a  waiver  of  the  warrantv.^^  The  law  presumes 
that  the  only  warranty  is  that  the  bulk  shall  conform  to  the. 
sample  in  kind  and  quality. ^^ 

§  1588.  Warranty  of  Quality. — No  particular  form  of 
words  is  essential  to  constitute  a  warranty  of  quality.     An  asser- 

>  Ketchura  v.  Wells,  19  Wis.  25.  ^  Milburn  v.  Belloni,  34  Barb.  607. 

sjosling  V.   KingsfurJ,  13   C.    B.,  *H;imiltoii  v.  Ganyard,    34    Barb. 

N.  S,.  447.  201;  Civil  Code,  s  c  176S. 

»  ll.dinan  v.  Dord,  12  Burb.   336;  *  Hoe   v.  .•^aiiLoni.   21   N.   Y.  552; 

Willi'imson  v.  Allison,  2  East,  416.  Civil  Code,  sec.  1769. 

i  Id.  1"  D.-itend..iff  v.  Gage.  7  Barb.  18. 

*  Edickv.  Grim,  10  Barb.  44-5.  "  Willings  v.  Coiisequa,  Pet.  C.  Ot 

•  S|)riiig-<teed  v.   Lawson,  14  Abb.  801. 

Pr.  328;  Sweet  V.  Ingerson,  12  How.  '*  Ramsdell  v.  United  States,  2  Ct 
Pr.831:  of  C.  (Nolt  &  U.)  508. 

EsTBE,  Vol.  1—38. 


694  FORMS  OF  COMPLAINTS.  §   1589. 

tion  of  the  vendor,  if  relied  upon  by  the  vendee,  and  understood 
by  both  parties  as  an  absolute  assertion  and  not  merely  an  ex- 
pression of  opinion,  will  amount  to  one.^  Where  the  plaintiff 
inspects  the  goods  before  purchasing,  the  case  is  taken  from  the 
operation  of  the  rule  of  implied  warranty.^  An  adveriisemtnt 
of  goods  for  sale,  giving  them  a  higher  character  than  upon  ex- 
amination they  turn  out  to  merit,  will  not  amount  to  warranty, 
where  the  purchaser  relies  upon  his  own  inspection  3  A  mere 
tpraise  of  personal  property,  such  as  wool,  indulged  in  by  the 
■owner  when  offering  it  for  sale,  does  not  amount  to  an  ira[)lied 
warranty  of.  its  quality  or  condition,  if  the  buyer  has  an  oppor- 
tunity to  examine  it  and  fails  to  do  so,  and  no  artifice  is  used 
by  the  seller  to  prevent  him  from  making  an  examination.'*  If 
one  party  contracts  to  deliver  the  other  wool  "  in  good  order," 
and  the  latter  agrees  to  accept  and  pay  for  it,  the  clause  "in 
good  order"  is  an  express  warranty.^ 
§  1589.     On  Warranty  of  Soundness. 

Form  No.  409. 
[TiTLK.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the ;  day  of ,  18...,  at , 

the  defendant  sold  to  the  plaintiff  a  horse,  for dollars. 

II.  That  by  the  said  contract  of  sale  the  defendant  warranted 
the  said  horse  to  be  sound,  and  thereby  induced  the  plaintiff  to 
purchase  the  same  of  him,  and  to  pay  him  therefor  the  said 
price  of dollars. 

III.  That  the  said  horse  was  at  the  time  of  said  sale  unsound 
in  this:  that  [state  wherein  he  was  unsound]. 

IV.  That  the  plaintiff  was  misled  and  injured  thereby,  and 
has  sustained  damages  by  reason  of  the  premises,  to  the  amount 
of dollars. 

[D  KM  AND   OF  JUDGMBNT.] 

§  1590.  Duty  of  Purchaser. — A  purchaser  can  not  pro- 
ceed without  inquiry  or  examination  to  use  an  article  which 
will  damage  his  business,  relying  upon  a  warranty  which  only 
goes  to  the  fact  of  the  nature  or  character  of  the  article,  and 
not  to  the  effect  of  using  it,  and  still  hold  the  vendor  responsi- 
ble for  the  consequences.  6 

1  Polhemua  V.  Heiman,  45  Gal.  573 ;  etc.,  are  implied,  considered  in    Hoe 

Sweet  V.  Bradley,  24  Barb.  519;  Cnap-  v.  Sanborn,  21  N.  Y.  55 J. 

man  V.  Mm-ch,  19  Johns.  290:  C>irley  ^Calhoun  v.  Vechio,  3  Wash.  0.  Ct. 

V.   Wilkiiis,  6   Barb.   657;  Wilbur  v.  16);     McVeigh    v.     Messeismilh,    6 

Cartright,  4i  Id.  536.  Cranch  C.  Ot.  316. 

'Moore    v.  McKinlay,  5   Gal.  471.  *  Byrne  v.  Jansen,  50  Gal.  624. 

The    grounds    and    principles    upon  '  P»>lhemu8  v.  Ilcinian,  50  Gal.  438. 

which  warranties  of  title,  of  quality,  •  Milburn  v.  Belloni,  34  Barb.  607. 


§   1596.  WARRANTIES  OP  CHATTELS.  695 

§  1591.  Measure  of  Dania^es. — The  plaintiff  may  recover 
the  difference  between  the  value  of  the  chattel  as  warranted  and 
as  found  to  be  by  the  court  or  jury,  and  special  damages  for  in- 
juries ooc;i8ioned  by  the  condition  of  the  chattel.*  Special  dam- 
ages for  injuries  occasioned  by  the  condition  of  the  chattel  must 
be  averred,  as  the  communication  of  infectious  diseases  by  an 
animil  warranted  sound.* 

§  1592.  That  Plainil  Relied  on  Warranty. — A  com- 
plaint wbidi  alleges  that  plaintiff  purchased  of  defendant  twenty- 
seven  head  of  hogs ;  that  defendant  represented  them  to  be  sound 
and  healthy;  that  the  plaintiff  relied  on  said  representations, 
having:  no  opportunity  by  ordinary  diligence  to  discover  that  the 
same  were  not  true ;  t!iat  in  fact  they  were  diseased  and  unhealthy, 
being  then  infected  with  hog  cholera,  and  known  to  be  so  by  the 
defendant,  and  that  afterwards  twenty-five  of  them  died  with 
that  disease,  is  good  on  leraurrer.* 

§  1593.  The  Plaintiff  was  Misled. — The  complaint  must 
aver  that  the  plainuff  was  actually  misled  by  reason  of  the  war- 
ranty/* 

§  1594.  Warranty  of  Soundness. — A  general  warranty  of 
soundness  covers  even  visible  defects  of  a  chattel,  unless  they  are 
such  as  could  be  discerned  by  an  ordinary  observer  without 
peculiar  skill.*  A  mere  cold  controllable  by  ordinary  remedies, 
not  affvCting  the  general  health  or  usefulness  of  a  horse,  is  not  an 
unsoundness.^  A  guaranty  that  the  article  should  pass  inspection 
is  nothing  more  than  the  usual  warranty  of  the  soundness  and 
quality  of  the  thing  sold.' 

§  1595.  Rights  in  Case  of  Breach. — ^The  breach  of  a  war- 
ranty entitles  the  buyer  to  rescind  an  agreement  for  sale,  but 
not  an  executed  sale,  unless  the  warranty  was  intended  by  the 
paities  to  operate  as  a  condition.* 

§  1596.    On  a  Warranty  of  Judgment. 

Form  No.  410. 
[Title.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the  day  of  ,  18...,  t!ie  defendant, 

for  a  valuable  consideration,  assigned  to  this  plaintiff  a  judg- 
ment which  on  the day  of ,  18..,  he  recovered 

*  .Tpffrey  v.  Bigelow,  18  Wend.  518.     67;  Marsjetaon  v.  Wrijrht,  20  Ensj.  O. 

*  Id.  Lhw,  209;  iJirdseye  V.  Frost,  34  Barbw 
»  iSj.ker  V.  McGinniss,  22  Ind.  257.  8li7. 

*  H.-linnn  v.  Dord,  12  Barb.  338;  •  Spnnp^tppd  v.  Lawson,  14  Abb. 
On  ida  Mfj?  Soc.  v.  Lawrence,  4  Cow.      Pr.  S-JS;  23  H.»w.  Pr.  80 j. 

440.  »  Gibson  v.  Stpvens,  8  H.>w.  (J.  S.884. 

*  Chit.  Con.  46Q;  Para.  Merc  Law,         *  Civil  Code  CaL,  sec  iloQ. 


696  FORMS  OF  COMPLAINTS.  §   1697. 

in  the  snpprfor  court  of  the  county  of ,  for  the  sum  of 

dollars,  in  a  certain  action  when  in  A.  B.,  defendant 

above  named,  was  the  plaintiff,  and  one  C.  D.  was  defendant. 

II.  That  said  assignment  contnined  a  covenant  on  the  part  of 
the  defendant,  of  which  the  following  ia  a  copy  [copy  of  the 
covenant]. 

III.  That  in  truth,  at  the  time  of  said  a=!signment,  said  judg- 
ment had  been  paid  in  full  to  the  defendant,  and  no  part  thereof 
was  or  now  is  due  thereon. 

IV.  That  by  means  of  the  premises  this  plaintiff  was  misled 
and  injured,  to  his  damage   dollars. 

[Dkmand  of  Judgment.] 

§  1597.    On  a  Warranty  of  a  Note. 

Form  No.  4^1, 

[TlTLB.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the day  of ,  18...,  the  defendant 

offered  to  pass  to  the  plaintiff,  for  a  valuable  consideration,  a 
promissory  note,  of  which  the  following  is  a  copy  [copy  of  the 
note],  and  he  then  and  there  warranted  the  said  note  to  have 
been  made  by  the  said  A.  B. 

II.  That  the  plaintiff,  relying  upon  said  warranty,  purchased 

said  note  of  the  defendant,  and   paid  therefor  the  sum  of 

dollars. 

III.  That  said  note  was  not  made  by  said  A.  B. ;  that  his 
name  was  forged  thereto. 

IV.  That  by  reason  of  the  premises  the  plaintiff  was  injured 
and  misled,  to  his  damage dollars. 

[Demand  of  Judgment.] 


CHAPTER  XI. 

SEVEKAL  CAUSES  OF  ACTION  UNITED. 

§  1598.  Cause  of  Action  under  the  Money  Counts. 

Foitn  No.  4-iS, 
[TiTLK.] 

The  plaintiffs  complain,  and  allege : 

I.  That  at  the  times  hereinafter  mentioned,  the  plaintiff 
were  partners,  doing  business  at  the  city  and  county  of  San 
Francisco,  state  of  California,  under  the  firm  napae  of  A.  B.  & 
Co.,  and  the  defendants  were  partners  doing  business  at  the 
said  city  and  county  of  San  Francisco,  under  the  firm  name  of 
C.  D.  &  Co. 


§  1599.         SEVERAL  CAUSES  OF  ACTION  UNFTED.  697 

Ffrtf. — For  a  first  cause  of  action,  the  plaintiffs  allege: 

I.  That  on  the day  of ,  18...,  at ,  at 

the  request  of  the   defendants,  the  plaintiffs  deposited  with  the 

defendants  the  sum  of dollars,    gold   coin  of  the  United 

States,   which    sum  "  the    defendants    promised  to  pay  to  the 
plaintiffs  on  demand. 

II.  That     n  the  day  of ,  18..,  at  , 

the  plaiiTtiffs  demanded   payment  of  the  same  from  the  defend- 
ants, but  they  have  not  paid  the  same. 

Second. — And  for  a  second  cause  of  action,  the  plaintiffs 
allege : 

I.  That  on  the day  of   18      ,  at  ,  the 

defendants  received dollars  from   one   E.  F.,  to  be  paid 

to  the  plaintiffs. 

IE.  T.iat  the  defendants  have  not  paid  the  same. 

Turd. — And  for  a  third  cause  of  action,  the  pla.utiffs  allege: 

I.  Tiiat  on  the day  of  ,  18...,  at ,  the 

pla'ntiffs  lent  to  the  defendants dollars. 

XL  Til     the  defendants  have  not  paid  the  same. 
[Dkmand  of  ^tdumknt.]^ 

§  1599.  Accounts. — When  separate  accounts  between  the 
same  parties  are  separate  cinses  of  action,  they  may  be  seoa- 
rately  stated.'     The   plaintiff  may  demand  in  the  same  action 

*  The  plaintiff  may  unite  several  causes  of  action  for  injuries,  with  or 
causes  of  action  in  the  same  com-  wiiliout  foive,  to  person  and  prop- 
plaint  where  they  all  arise  out  of:  eriy,  or  either.  The  Wisconsin  code, 
1,  (^>ntt•act9,  express  or  implied;  2.  sec.  31,  is  the  same  as  the  Ohio  code. 
Claims  to  recover  specific  real  prop-  The  Iowa  code,  sec.  26.J0,  is  as  fol- 
erty,  with  or  without  damMges  for  lows: '•  Clauses  of  action  of  whatever 
the  wiihnoUing  thereof,  or  lor  waste  kind,  where  each  may  be  prosecuted 
com'uiited  ihereon,  and  the  rents  and  by  the  same  kind  of  proceed! nsjs.  pro- 
profits  of  the  same;  3.  Claims  to  re-  vid-d  that  they  be  by  the  same  party, 
cover  specific  personal  property,  with  and  against  the  same  party  in  the 
or  witho'it  damages  for  the  withhold-  same  rij^hts.  and  if  suit  on  all  may  be 
ing  thereof;  4  Claims  against  a  trustee  brought  and  tried  in  that  countv,  mnv 
by  virtue  of  a  contract,  or  by  opera-  be  joined  in  the  same  petition;  but 
tion  of  law;  o.  Injuries  to  character;  the  court  to  prevent  confusion  there- 
6.  Injuries  to  person;  7.  Injuries  to  in.  may  direcit  all  or  any  portion  of 
property.  the  is-ues  joined  therein  to  be  tried 

The  causes  of  action  must  belong  Sf-parately,  and   mnv   determine   the 

to  one  only  of  these  classes,  and  must  crier  thereof."      Under  this  section, 

affect  all  the  parties  to    the    nction,  tort    and   contract    may    be  joined: 

and  not  require    different   places   of  Turner  v.  First  Nat»   Bank,  26  Iowa, 

trial,  and  must  be  separnleiy  slated;  5Hi.     Code    of  Dakota,    sec.    186,   is 

but  an   ai'iion    for    malicious  arrest  copied  from  the   Ohio  Code;  Nevnda 

and   prosi'cution,   or  either  of  them.  Code.  s<'c  64;  Oregon  Code,  sec.  91. 

may   be   united   with   an    action    for  *  Phillip- v.  Herick,  IH  Johns,  lif? ; 

eitiier  an  injury  to  charicter  or  to  the  Stevens  v.  Lock  wood,   13  V\  pod.  (144; 

person:  CmI.   Code  C   P  ,  sec. 427 ;  N".  Stapl-s   v    (^....drirh.  21    B-rb.  317; 

y.  Code  Proc,  sec.  484.     The   Ohio  Secor  v.  Sturgis,  2  Abb.  Fr.  69. 
code,  sec.  &)0,  permits  tne  joinder  of 


598  '  FOimS  OP  COMPLAINTS.  §    1600. 

that  defendant  account  for  and  refund  a  proportion  of  the  out- 
fit and  advances  ma<le  on  a  joint  adventure.^ 

§  1600.  Causes  of  Action  maybe  United. — The  plaintiff 
may  unite  several  causes  of  action  in  the  same  complaint 
■when  they  arise  from  and  constitute  part  of  the  same  tr  nsac- 
tion,'^  if  such  union  does  not  amount  to  a  misjoinder,  in  wliich 
case  tlie  objection  can  be  raised  only  by  demurrer.^  But  actions 
8b  united  must  affect  all  the  parties  to  the  action,  and  not  re- 
quire different  places  of  trial ;  but  the  defendants  need  not  be 
all  equally  affected.'*  An  action  for  goods  sold  and  for  the 
price  of  goods  wrongfully  taken  from  a  third  person  and  sold, 
may  be  joined ;  the  tort  in  the  latter  having  been  waiveil  by  its 
assignment,^  and  must  belong  to  tae  same  class, ^  and  must  be 
consis'ent  with  each  otiier.''' 

§  1601.  Claims  in  Two  Capacities. — Claims  against  trus- 
tees by  virtue  of  a  contract,  or  by  operation  of  law,  may  be 
joined. 8  So,  a  trust  and  a  vendor's  lien  may  be  united  in  one 
action.^  Counts  on  promises  to  the  testator  and  to  his  ex- 
ecutor in  his  representative  capacity  may  be  joined.^*  Counts 
on  promises  made  by  the  testator  may  be  joined  with  counts  on 
promises  made  by  the  administrator,  as  such.^^  After  counts 
by  the  plaintiff,  as  executor,  for  an  excessive  distress,  and  for 
distraining  for  more  rent  tlian  was  due,  the  declaration  pro- 
ceeded thus:  "  And  the  plaintiff,  as  such  executor  as  aforesaid, 
also  sues  the  defendant  for  money  paid  by  the  plaintiff  as  such 
executor  as  aforesaid,  for  the  defendant,  at  his  request,  and  for 
money  received  by  the  defendant  for  the  use  of  the  plaintiff, 
and  for  money  found  to  be  due  from  the  defendant  to  the 
plainiiff  on  an  account  stated  between  them.  And  the  plaint- 
iff, as  such  executor  as  aforesaid,  claims,  etc.  It  was  held,  on 
demurrer,  that  the  decb.ration  was  bad  for  misjoinder. ^^ 

§  1002.  Class— Co  nmon  Counti.— Where  the  form  of  the 
action  is  the  same,  and  where  the  same  plea  may  be  pleaded 
and  tlie  same  judgment  given  on  all  the  counts,  they  are  well 
joined. ^3     go,  the  common  counts  may  be  united   in  one  com- 

»  Garr  v.  Redman,  6  Cal.  574.  »  Birt  v.  Wilson,  28  C«l.  682. 

•Cal.  Cod'' 0.  P.,  sec.  427.  "Brown   v.   Webber,  6  Cuah.    671; 

»  Fr\  z  V.  Fritz,  23  Ind.  888.  8uliiv«n  v.  Holker.  15  Mass.  374. 

*  Kai.e  V.  Scott,  60  H.>w.  Pr.  fi06;  »' Hupajood  v.  Hniajhtnn,  10  Pick. 
Be»  Viii  \Vrt;j;enHn  v.  Hunt,  7  Hnn,  154;  Dixon's  Executors  t.  Kair.sav'g 
828;  L'idd  V,  .Inmes,  10  Oliio  St.  437.  AdministiHtors.  1  CranrVi  (\  Ct.  472. 

*  Hnwl<  V.  Thorti,  64  BHrh.  lt)4.  **  Uitvies  v.  Davies,  1   Hurl.  &  Colt. 
•Cleveland  v.  Barrows,  69  Barb.         451. 

864.  13  Fairfield   v.    Burt,    11    Pick.  244; 

'  Smith  V.  Hnllock,  8  H.-w.  Pr.  73.    'WorBter  t.  Canal  Bridge,  16  Id.  5til. 

*  Cal.  Code  C.  P.,  sec.  427. 


S   1605.         BEVEUAL  CAUSES  OF  ACTION  UNITED.  599 

plaint,  if  separately  stated.^  Bat  they  cannot  be  united  in  one 
count  as  one  cause  of  action,  williout  any  specification  of  the 
sums  due  upon  each  several  cause. ^ 

§  1603.  Contracts. — Causes  of  action  arising  from  contracts, 
express  or  implied,  may  be  uuited.  Thus  claims  due  as  dam- 
ages for  delay,  and  a  demand  to  set  aside  an  award,  all  growing 
out  of  the  same  contract,  may  be  united  in  one  action.^  To 
reform  a  written  contract,  and  for  judgment  thereon,  when 
reformed.*  For  reformation  of  a  contract,  and  for  damages  for 
breach  of  it.*  Damages  for  false  representations,  and  for  breach 
of  contract,^  Loss  of  goods  by  carrier,  and  also  for  freight  over- 
paid.' A  cause  of  action  for  false  representations  in  inducing 
the  plaintiff  to  enter  into  a  contract,  and  a  cause  of  action  for  a 
breach  of  the  same  contract,  may  be  joined.®  On  the  joinder  of 
ordinary  claims  in  contract  with  claims  for  wh  ch  defendant  is 
arrestable,  the  plaintiff  may  waive  arrestability  in  the  latter  case.* 

§  1604.  Contract  of  Partners. — A  complaint,  after  stating 
cause  of  action  on  a  contract  against  partners,  and  demanding 
judgment  therefor,  contained  also  allegations  that  the  defend- 
ants were  insolvent,  and  had  fraudulently  confessed  judgment 
to  hinder  their  creditors,  and  demanded  an  injunction  and  a  re- 
ceiver. Held,  that  although  the  last  matter  might  be  obnoxious 
to  a  motion  to  strike  out,  its  insertion  did  not  render  the  com- 
plaint demurrable.^"  In  Massachusetts,  a  surviving  partner  may 
join  in  the  same  action  a  demand  due  to  the  firm,  and  another 
due  to  himself  in  his  own  right ;  or  demands  due  to  him  as  the 
surviving  partner  of  two  firms. ^^ 

§  1605.  Each  Cause  Complete. — Each  separate  cause  of 
action,  as  stated,  must  be  complete  in  itself,  and  must  stand  by 
itself.^  And  directly,  that  numerous  items  of  a  distinct  class 
should  be  stated  in  distinct  couuts.^^ 

1  Proebfim  v.   Qlnz^r,  lOCal.  337;  As  to  contrnots,   with    allejationa  of 

De  Wilt  V.  Porter,   13  Id.  171;  Bui-k-  matters  of  fraud,  see  Koth  v.  i:'uimer, 

ingb-.m  V.  Waters,  14  Id.  146;  Keller  27  BhH).  652. 

V.    Hiiks,  22  Id    457;     Birdse^e    v.  »  Rubiinon  v.  Flint,   7  Abb.  Pr.  39!?, 

Smith.  32  Barb.  217.  nott»;  and  see  also  Freer  v.  Denton,  61 

«  liuokiiiirhamv. Waters.  14  Cal.146.  N.  Y.  492. 

»  S.>e  V.  P.trtriiigp,  2  Duer,  463.  *  U  •  k.-x  v.  Pay,  36  Barb.  9-14. 

♦  Storv's  Eq.  J'ur.,i««>c8.  157-161;  2  *"  .Meyer  v.  Vaa  Colleiu,    7  Abb.  Pr. 

Johns.  Ch.  b'^'y ;  4  Id.  144 ;  Gocd.ng  v.  222. 

M'Alister.  9  How.  Pr.  12"..  "  -Stafford  v.  Gold.  9  Pick.  fi33. 

»  Bidwpll  V.  Astor  Mut.  Ins.  Co.,  16  '»  Latiin  v.  McCarty,    17   H-w.    Ph 

N.  Y.  2t)3.  2"9;  8  Abb.  Pr.  225;  'see  also  W*t»on 

«  llohin^jon    v.  Flint,    16    How.   Pr.  v.  S.   F.    &   H.    B.    R.  K.   Co.,  41  Cal. 

210:  7   Abb.  Pr.  39:^;    s^e,   how.-ver,  17;    Har.-eii  v    BHVHud.  5    Uutr,  656; 

"Waller  V.  RnskHn,  12  How.  Pr.  28.  Dor  mhm  v.  KHlnm.    14  H-w.  IV.   184. 

'  Adauifl  V.   Bissell,  28   Barb.   S82.  ^  Adams  v.    HoUey,    12    iiwW.   Pr. 


600  FORMS  OF  COMPLAINTS.  §   1G06. 

§  1606.  Injuries  to  the  Person. — Claims  for  injuries  to 
character,  or  injuries  to  character  and  malicious  arrest  and  prose- 
cution, may  be  united.^  Plaintiff  may  recover  in  an  action  for 
the  combined  injury  to  character  and  person,  when  the  matters 
arise  from  and  constitute  a  part  of  the  same  transaction.^ 

§  1607.  Injuries  to  Person  and  Property. — It  seems  that 
negligence  and  the  damage  arising  therefrom,  both  to  the  person 
and  property  of  plaintiff  may  be  united. '  For  one  injury,  all 
the  acts  of  negligence  should  be  alleged  in  one  count. ^  Injuries 
resulting  to  both  person  and  property,  from  the  same  negligent 
act,  constitute  but  one  cause  of  action. ^ 

§  1608.  Injuries  to  Property. — Actions  for  injuries  to 
property  may  be  united.**  The  union  in  one  count  of  a  com- 
plaint of  an  allegation  that  defendants  "  have  wrongfully  built 
dams  and  flumes  across  said  Mormon  creek  •  *  *  so  as  to 
turn  the  water  of  said  creek  out  of  its  natural  channel,"  etc., 
and  thus  divert  it  from  plaintiff,  with  an  allegation  that  defend- 
ants "have  constructed  gates,  etc.,  in  their  said  dams  and 
flumes,  which  they  ♦  •  *  hoist  for  the  purpose  of  clearing 
out  said  dams  and  flumes  of  slum,  8tone„  and  gravel,  tlie  accu- 
mulation of  which  renders  the  water  useless  to  plaintillf,"  does 
not  make  the  complaint  demurrable,  on  the  ground  that  it 
unites  several  distinct  causes  of  action  in  one  count.'  In  an 
action  for  injuries  to  a  mining  claim,  a  claim  for  damages  to  the 
plaintiff  by  reason  of  the  breaking  away  of  the  defendant's 
dam,  and  the  consequent  washing  away  of  the  pay-dirt  of  the 
plaintiff,  may  properly  be  joined  with  a  claim  for  damages  for 
preventing  plaintiff  from  working  his  claim. ^  Detenion  of 
property,  and  injury  to  it  while  detained,  may  be  united. ^ 
Value  of  property  destroyed,  and  damages,  may  be  united. ^"^ 
Allegations  for  conversion  and  detention,  and  prayer  for  specific 
delivery,  is  no  misjoinder,  being  held  a  demand  for  only  one 

826 ;  Hillman  v.  Hillmftn,  14  Id.  45R ;  Wilson  v.  Smith,  10  Wpnd.  32R :  1  Ch. 

and  see  also  Longworthy  v.  Kiiapp,  4  PI.  127;  Howe  v.  Peckhaiu,  6  U^w. 

Abb.  Pr.  115.  Pr.  2:J9. 

1  ChI.  Code  C.P.,  sec.  427;  Howe  v.  «  Dickens  v.  N.  Y.  Cent.  R.  R.  Co., 

Peckham,  6  How.  Pr.  229;  S.  C,  10  13  How.  Pr.  228. 

Barb.  fi5ti;  Hull  v.  Vreeland,  42  Id.  "»  Howe  v.  Peckham,  10  Barb.  656; 

64.3 ;  18  Abb.  Pr.  182.  S.  C,  6  How.  Pr.  229. 

*  .Jones  V.  Steamship  Cortes,  17  Cal.  «  Cal.  Code  C.  P.,  sec.  427:  Moore 

487.      Criminal      conversntion     with  v.  Mas^ini,   32     C.tl.    500;    Howe    T. 

plaintiff's  wife  held   to  be  an  injury  Peckham,  0  How.  Pr.  229. 

to  the  person:  Dalamater  v  Riisneli,  ^  G.-ile  v.  Ttiol.  W.  Co.,  14  Cnl.  2-5. 

2  Code  R.  147.     So  also  is  seduction:  ®  Fraler  v.  Sears  Union  Wuter  Co., 

Tavlor  V.  North.  3  Id.  9.  12  Cal.  555. 

»  Williams  V.  Holland,  10  Ring.  112,  ■  Smith  v.  Orser.  43  Barh.  187. 

117  ;  Biinu  v.  Campbell,  14  Johns. 433 ;  ^  Tendes'm  v.  Mursbuil,  3  Cal.  440. 


§   1613.         SEVERAL  CAUriES  OF  ACTION  UNITED. 

kind  of  remedy.^  For  violation  of  agreement,  and  for  injnry  to 
personal  property. '^  Damnges  and  injunction  may  be  joined  in 
an  action  for  threatened  injury  to  property.  The  owner  of  land 
may  join  in  the  same  complaint  a  claim  for  damages,  as  as- 
signee, caused  by  a  trespass  on  the  land,  while  it  was  owned 
by  his  grantor,  and  a  claim  for  an  injunction  for  a  threatened 
injury  to  the  land.^  The  plaintiff  may  join  in  the*  same  com- 
plaint a  cause  of  action  for  distinct  and  independent  injuries 
to  property,  and  the  property  injured  in  each  cause  of  action 
may  be  the  same  or  different,  and  may  be  either  personal  or  real.* 

§  1609.  Jarisdictio.1. — Where  the  separate  causes  of  action 
amount  to^jether  to  more  than  the  sum  required  to  give  juris- 
diction, if  joined  in   one  declaration  they  will  give  jurisdiction.* 

§  1610.  Mansy  Counis  and  Warranty. — Money  counts 
may  be  added  to  a  count  on  the  warranty.  Or  a  count  for  de- 
ceit may  be  added  to  a  count  on  the  warranty.^  But  a  claim 
in  assumpsit  for  warranty  of  a  horse,  and  for  wrongfully  con- 
cealing his  defects,  could  not  be  united.'  But  when  the  form 
of  action  in  tort  is  adopted,  it  is  not  necessary,  to  enable  plaint- 
iff to  recover  upon  the  count  for  false  warranty,  that  a  scienter 
shou'd  be  averred. ^ 

§  161 1.  Money  Had. — A  claim  for  money  had  and  received, 
and  a  claim  for  the  de  ivery  of  a  satisfied  promissory  note, 
arising  out  of  the  same  transa<  tion,  may  be  united. ^ 

§  1612  Quantum  Meruit. — A  quantum  meruit  or  a  quan- 
tum V  deb  it  ra  ly  be  joiae  I  willi  counts  upon  a  specialty.^" 

§  1613.  Separate  Demands  — Separate  demands  under  one 
and  the  same  right  may  likewise  properly  be  joined  in  the  same 
count.^^  Several  grounds  of  liability  against  the  same  defend- 
ant, arising  out  of  the  same  transaction,  may  be  joined  in  one 
action. ^2  By  the  same  plaintiff,  as  devisee  for  rent,  and  as 
executrix,  for  breach  of  covenant,  all  arising  out  of  the  same 
lease. ^3     yo  also  claims  against  the  same  defendant  in  different 

1  Vofffil  V.  Badcock,  1  Abb.  Pr.  176.     279;  Holman  v.   Dord.  19  Barh  336; 

•  HhiIithp  v.    Benedict,   1  llilt.  414;     bi-huchardt  v.  Aliens,  1  Wall.  3'>9. 

4  Ai'b  Pr.  176.  •  Calioon  v.  Bank  of  Ulica,  7  How. 

»  Mowre  V.  Massini,  82  Cal.  590.  Pr.  401. 

*  Id.  '"  Smith    V.  First    Consj.    M^-Pting- 

*  Ki.lgway  V.  Pancost,  1  Cranch  C.  house  of  Lowell.  8  Pick.  178;  Van 
Ct.  8s.  DtMisen  v.  Blum,  18  M   2-.i9. 

•  Vail  V.  Strong,  10  Vt.  457 ;  Dobbin  '*  Longworiny  v.  Knapp,  4  Abb.  Pr. 
V,  Fovles,  2  Crai.ch  C.  Ct.  65  115. 

'  Sweei  V.    Insjerson,  12   How.   Pr.  ^  Durant  v.  Q-ardner,  19   How.  Pr, 

8S1  ;  Spriiigstead    v.    Lawsoii,   23  Id.  94;  10  Abb.  Pr.  445. 

80i'.  "  Armsiroug  v.  Hall,  17  How.  Pr. 

8  Brown  v.  Edgington,  2  Man.  &  (J.  7tt. 


602  FORMS  OF  COMPLAINTS.  §   1614. 

capacities  may  be  united.*  For  money  received  on  account  of 
an  estate,  and  also  for  a  promissory  note  which  is  part  of  the 
estate,  but  payable  to  the  executor  individually.^  So  of  claims 
against  various  parties,  liable  to  contribute  their  proportion  for 
repairs,  for  the  general  benefit  of  all.^  Against  constable  for 
different  breaches  of  duty,  and  against  his  surety,  held  capable 
of  joinder.*  It  would  also  seem  that  in  New  York,  a  claim  by 
a  stockholder,  who  is  also  a  judgment  creditor  of  a  corporation, 
may  in  certain  cases  maintain  an  action  against  the  corporation, 
and  against  its  other  stockholders,  and  its  other  credit  rs,  with 
a  view  to  ascertain  and  provide  for  the  rights  of  all  parties.* 

§  1614.  Several  Counts. — A  complaint  which  contains  a 
count  setting  forth  the  facts  attending  the  purchase  of  a  county 
warrant  by  plaintiff,  and  charging  that  defendants  are  liable 
upon  an  implied  contract  to  repay  the  purchase  money,  and  a 
second  count  charging  defendants  as  indorsers  of  negotiable 
paper  and  a  third  count  in  the  usual  form  for  money  had  and 
received,  is  not  demurrable  on  the  ground  of  a  misjoinder  of 
causes  of  action.*  In  Iowa,  a  party  may  state  in  one  count  a 
cause  of  action  on  a  note,  and  in  another  a  cause  of  action  on 
the  consideration  of  a  note.' 

§  1615.  Specific  Performance. — A  claim  for  specific  per- 
formance of  a  contract  to  convey  real  estate,  and  for  payment 
of  a  reasonable  sum  for  use  and  occupation,  is  not  setting  up 
two  distinct  causes  of  action  which  can  not  be  united. ^  Grantor 
with  warranty,  and  holder  of  an  incuml)rance,  may  be  joined, 
to  obtain  satisfacticm  of  such  incumbrance,  and  a  recovery  over 
for  any  amount  found  due  on  it.^ 

§  1616.  Specific  Personal  Property. — Claims  for  the  re- 
covery of  specific  personal  property,  with  or  without  damages 
for  the  withholding  thereof,  may  be  joined.^"  So  also  replevin 
and  fraud  may  be  united. ^^ 

§  1617.  Speciac  Real  Property. — Claims  to  recover  spe- 
cific real  propert}',  with  or  without  damages  for  the  withhold- 
ing thereof,  or  for  waste  committed  thereon,  and  the  rents  and 
profits  on  the  same,  maybe  united.^^    A  complaint  in  ejectment 

'Pugsley  V.    Aiken,  1   Kern.  494;  •  Spier  v.  Robinson,  9  How  Pr.  .'525. 

Lord  V.  Vreelanrt,  1:^  Abb.  Pr.  195.  "  \V:iiKlie  v.  Tiirney.  6  Uuer,  ml. 

*  Welles  V.    Webster,   9    How.   Pr.  *»  t "uj.  Code  Civil  Proc,  sec.  427. 
251.  ^'  rniehody  v.  Jacobson,  2  Cal   269. 

'  D«»nman  v.  Prince  40  Barb.  213.  '^v^hI.  Code  C.  P..  sec.  427;  Sullivan 

*  MiKire  V.  Smith,  I0HowPr.8Hl.         v.     >4  vis,  4  Cal.  291 ;  Httffmaii  v. 'luol. 
6  Geery  v.  iSt-w  York  &  Liverpool     W    trCo.,  10  Id.  418;   Gule  v.  Tuol. 

S.  S.  Co.,  12  Abb.  Pr.2t)8.  W    -r   Co.,  14  Id.  25;    Hot<-hkiss    v. 

*  K.'ller  V.  HiCxS,  22  Cal.  4f>7.  Au  urn  and  Koebester  K.  K.  Co.,  36 
'  Cttiiip  V.  VV  ilson,  16  Iowa,  225.  Ba   »  OOO. 


9  1613.         SEVERAL  CAUSES  OP  ACTION  UNITED.  603 

may  be  for  two  separate  and  distinct  pieces  of  land,  but  the  causes 
of  action  must  be  separately  staved,  and  affect  all  the  parties  to 
the  action,  and  not  require  <1iffeient  places  of  trial. ^  Otherwise 
It  would  appear  that  the  old  form  of  declaring  in  ejectment  by 
Bepar.ite  counts  is  no  long^er  admissible. ^ 

§  1618.  Speciac  Relief. — Claims  by  a  debtor  to  have  obli- 
gations delivered  up  and  can(;eled,  and  an  account  of  the  secur- 
ities pledged  for  them,  and  payment  of  the  overplus,  is  but  one 
Cause  of  action. ^  A  cause  of  action  for  reformation  of  mort- 
gage, and  for  simultaneous  foreciosure,  may  be  united.^  So,  suit 
against  indorser  for  liability  on  note,  and  for  decree  against 
mortgagor  foreclosing  the  mortgage,  may  be  united  ;*  and  a 
claim  to  reform  au  assignment  iu  part,  and  for  accounDiug  under 
it  when  reformed.^ 

§  Trespass. —  In  Massachusetts,  under  trespass,  the  several 
species  of  quare  dausum  and  de  bonis  asportotis  may  be  jo  ned.'' 
Counts  in  trespass  upon  the  case  maj'  be  joined  with  a  count  in 
trover.^  So,  a  cau-^e  of  action  for  cutiing  wood,  and  also  one 
for  the  conversion  of  wood,  may  be  combined.^ 

»  BolM  V.  Kohftn,  15  Cfll.  150.  *  Rollins  v.  Forh^g,    10  CrI.    299; 

«  St.  John  V    Pierce,  22    Barb.  362.  Ert^maii  v.TiinnH.i.  24  1.1.  3'<2. 

«  Oahoou  V.   Bank  of  Utica,  7  N.  Y.  «  Garner  v.  \Vrit;ht.  :S  How   Pr,  92. 

4f^6.  S.  C,  7  How.  Pr.  401 ;  reversing  '  Bi*hop  v.  B>ker.  14  Pu-k.  517. 

10  !X4.  »  Aver  V.  B-.rtl^ti.  «  Pi.k    1'  0. 

*  Dopuyster  v.  Hasbrouck,  1  ILero.         *  Rudguni  v.  Rudders,  11  Baib.  595. 


SUBDITTSTO]^  FIFTH. 

FOB  DAMAGES  UFOiS  WKONGS. 


PART  FiaST  —  FOR  INJURIES  TO  THE  PERSO^T. 

CHAPTER  I. 

FOR  ASSAULT  AND  BATTERY. 

§  1620.     Common  Form. 

Foitn   No.  41s, 
[Title.] 

The  p!aiiitiff  comptains,  and  alleges: 

I.  Tliat   on  the  day  of ,  18...,  the  defendant 

violently  assaulted  the  plaintiff,  and  struck  him  [state  where] 
several  blows,  and  also  tore  the  clothes  from  the  plaintiff's  per- 
son [describe  the  violence  used,  and  its  consequences]  ;  to  his 
damaiie dollars. 

Wherefore  the  plaintiff  demands  judgment  for  dol- 
lars, his  damag-es  aforesaid. 

§  1621.  Abatement  of  Action. — Action  for  assault  and 
battery  can  only  be  brought  in  the  name  of  the  party  immedi- 
ately injured,  and  if  he  dies  the  remedy  determines.^  This  is 
the  rule  at  common  law,  but  is  changed  by  the  statutes  of  many 
of  the  states.  And  for  injuries  committed  on  the  wife  by  bat- 
tery, husband  and  wife  must  join;  and  if  she  die  before  judg- 
ment the  suit  abates.^  But  if  the  wife  dies  after  judgment,  the 
judgment  survives  to  the  husband. ^ 

§  1622.  Assault  Defined — Instances. — An  assault  is  an 
unlawful  attempt,  coupled  with  a  present  ability,  to  commit  a 
violent  injury  on  the  person  of  another.^  An  assault  is  an  offer 
to  strike,  beat,  ^  r  commit  an  act  of  violence  on  the  person  of 
another,  without  actually  doing  it  or  touching  his  person  ;5 
striking  at   a  person  with  the  hand  or  with  a  stick,  cr  by  shak- 

>  1  Chit  PI.  60.  ♦  Cal    P  -n.  Code.  .«pc.  210. 

«1  Chit.  PI.  78.  *,J.)h  8oa  V.  Ihomukiiib,  1   Baldw. 

»  12  6erg.  &  R.  76.  571,  bOO. 

604 


§   1626.  FOR  ASSAULT  AND  BATTEKY.  605 

ing  the  fist  at  him,  or  presenting  a  gun  or  other  weapon  within 
such  a  distance  as  that  a  hurt  might  be  given,  or  drawing  a 
sword  and  brandishing  it  in  a  menacing  manner,  provided  the 
act  is  done  with  intent  to  do  some  corporal  hurt.^  The  draw- 
ing of  a  pistol  on  another,  accompanied  by  a  threat  to  use  it 
unless  the  other  immediately  leave  the  spot,  is  an  assault, 
although  the  pistol  is  not  pointed  at  the  person  threatened.' 
Cocking  and  raising  a  gun,  and  threatening  to  shoot  a  person, 
when  the  act  indicates  an  intention  to  shoot  ;^  or  raising  a  club 
over  the  head  of  a  woman  witliin  striking  distance,  and  threat- 
ening to  strike  her  if  she  opens  her  mouth,  are  assiults.*  So 
also  to  double  the  fist  and  run  it  at  another,  saying:  "  If  you  do 
that  again  I  will  knock  you  down."*  So  the  mere  taking  hold 
of  the  coat,  or  laying  the  hand  gently  on  the  person  of  another, 
if  done  in  anger,  or  in  a  rude  and  insolent  manner,  or  with  a 
view  to  hostility,  amounts  not  only  to  an  assault,  but  to  a  bat- 
tery.* 

§  1623.  Assault  and  Slander. — A  plaintiff  nnay  aver  in  his 
complaint  all  that  took  place  at  the  time,  though  a  part  consti- 
tute an  assault,  and  part  a  slander,  and  recover  damages  which 
he  has  sustained  for  the  compound  injury.' 

§  1624.  Avoiding  Injury. — To  recover  damages  for  an 
assault  and  battery,  it  is  not  necessary  that  the  plaintiff  should 
have  fled  to  avoid  the  injury,  if  he  used  ordinary  care  to  pre- 
vent injury,  and  it  ensued  from  the  wrongful  act  of  the  defend- 
ant.® 

§  1625.  Battery  Defined. — A  battery  is  any  willful  and  un- 
lawful use  of  force  or  violence  upon  the  person  of  anocher.'  A 
battery  is  the  touching  or  commiss  on  of  any  actual  violence  on 
the  person  of  another  in  a  rude  and  angry  manner. ^" 

§  1626.  Damages. — In  cases  of  aggravated  assault,  the 
jury  are  permitted  to  give  exemplary  or  punitive  damages."  An 
employer,  though  not  present,  and  in  no  manner  consenting  to 
or  aiding  the  assault,  is   liable  for  the  actual  damage  sustained 

>  United  States  v.  Ortega,  4  "Wash.  »  Brewer  v.  Temple,   15  How.  Pr. 

C.  Ct.  584 ;  United  Stales  v.  Haiid,  2  286. 

Id .  4H5.  '  Head V  v.  Wood,  6  Ind.  82. 

»  People  V.  McMakin,8  Gal.  547.  »  California  Penal  Code,  sec.  242. 

8  United    States    v.     Kierman,   8  "  Johnson  v.  Tompkins,  1  Baldw. 

Cranch  C.  Ot.  485.  671,  600. 

♦United  States  V.    Richardson,    6  "Drohnv.  Brewer.  77  111.  280;  83 

Oranch  C.  Ct  348.  Mich.  49 ;  Wilson  v.  Middleton.  2  CaL 

•  United  States  v.  Meyers,  1  Cranch  54;  Wade  v.  Thayer,  40  Id.  578;  see 
C.  Ct.  810.  also  Wheaton  v.  N.  B.  &  M.  R.  R.  Co., 

•  United  States  v.  Ortega,  4  Wash.  86  Id.  590;  Shea  v.  F.  &  B.  V.  R.  B. 
a  CU  634.  Co.,  44  Id.  414. 


606  FORMS  OP  COMPLAINTS.  §  1627. 

in  an  assault  upon  the  person,  committed  bj  his  servants  or 
empl(>.vees,  while  in  the  performance  of  their  duties  as  siich.^ 

§  1627.  Malice. — Tlie  language  of  the  defendant  while 
committing  tlie  assault  is  admissible  in  evidence,  for  the  pur- 
pose of  characterizing  the  act  as  bearing  on  the  question  of 
malice.* 

§  1628.  Assault  by  Master  of  Vessel. — A  master  or 
commander  of  a  vessel  is,  in  general,  not  liable  to  an  action  for 
assault  and  battery,  for  chastisement  inflicted  upon  a  seaman 
or  marine,  where  he  acted  under  a  sincere  conviction  that  it 
was  necessary  to  enforce  discipline  or  compel  obedience  to 
orders,  and  not  from  passion  or  revenge.^  So,  where  a  master, 
believing  there  is  immediate  danger  of  mutiny,  maiies  use  of  a 
dangerous  or  deadly  weapon  to  reduce  a  seaman,  actually  in 
mutiny,  to  obedience,  he  is  not  liable.^  Seamen  are  generally 
entitled  to  recover  damages  for  an  assault  and  battery  from 
the  officer  of  a  sliip*  1.  Where  a  personal  violence  is  inflicted 
wantonly,  and  without  provocation  or  cause;  2.  Where  there 
was  provocation  or  cause,  but  the  punishment  was  cruel  or  ex- 
cessive; 3.  Usually  where  the  punishment  is  inflicted  with  a 
dangerous  or  deadly  weapon.^ 

§  1629.  Principal. — One  who  is  present  and  encourages  an 
assault  and  battery  is  a  principal,^ 

§  1630.  Provocation. — No  words  of  provocation  will  justify 
an  assault,  although  they  may  constitute  a  ground  for  the  re- 
duction of  damages. "'^ 

§  1631.  Where  Action  Lie3. — Assault  and  battery  will  lie 
against  a  steamboat,  for  an  assault  and  battery  committed  by 
the  m.ite  or  other  officer  of  the  boat,  on  the  person  of  a  passen- 
ger, while  such  boat  is  being  navigated  on  the  rivers  within  or 
bordering  on  the  state.*  Assault  and  battery  lies  for  injury  to 
the  relative,  as  for  beating,  wounding  and  imprisoning  a  wife 
or  servant,  by  which  the  plaintiff  has  sustained  a  loss.^     So  where 

»  Wade  ▼.  Thayer,  40  Cal.  578.  '  Forbes  v.    Parsons,  Crabbe,   283. 

•  McDougall  V.  McGuire.  35  Cal.  274.     compHre  Dinsman  v.  Wilkes,  12  How. 
•Diiisman  v.  Wilkes,  12    How.   U.     (US)  390.    For  the  law  woverning 

S.  S'JO;    CO  n  pare   United    States    v.  such  liability,  see  U.S.  Kev.  Slat,  at 

Freemiin,  4  Mason,  505;  Thompson  v.  L  ,  sec.  5347. 

Busch,  4  Wash.  C.  Ct.  338.  •  Coats  v.  D«rby,  2  Comst.  517;  5 

*  Roberts  V.  Eldridge,  1  Spraffiie,  Ohio,  2o0;  United  Slates  v.  Rit-ketts, 
64;  United  States   v.  Colby,  Id.  119;  1  Cratioh  C.  Ct.  Ifi4. 

United  Slates  v.   Lunt,  Id.  811.     As  '  Cushman  v.  Ryan,  1  Storv.  91. 

to  what  will  justify  corporal  punish-  *  Lny  v.  SteamboHt  etc..  28  III.  412. 

ment  of  senmen,  see  Morris  v.  Cor-  '9  00.  113;   10    Id.    130;  Bland  v. 

nell,  1  SprHjrue,  62;  PHvne  v.  Allen,  Drake,  1  Chit.  167.     When  not  under 

Id.  804 ;  Sheridau  v.  Furbuf,  1  Blatcht.  thf  color  of  process,  see  1 1  Mod.  180; 

&  H.  423.  btibmeider  v.  McLaiie,  86  Barb.  496. 


§    1635.  FOR  ASSAULT  AND  BATTERY.  607 

the  battery,  imprisonment,  etc.,  were  in  the  first  instance  lawful, 
but  uimecessary  violence  was  used.^  One  is  guilty  of  assault  and 
battery  who  delivers  to  ano*^.her  a  thing  to  be  eaten,  knowing 
that  it  contains  a  foreign  substance  —  as  cantharides  —  and  con- 
cealinz  the  fact,  if  the  other,  in  ignorance  of  the  fact,  eats  it,  and 
is  injured  in  health. ^  Acts  mila  prohibita  do  not  become  mala  in 
se,  unless  done  willfully  an  i  corruptly.  Oae  who  drives  over 
another  in  negligence  merely,  is  not  rendered  guilty  of  a  crimi- 
nal assault  and  battery  by  the  fact  that  he  does  so  while  violating 
a  city  orilinance  against  fast  driving. ^ 

§  1632.  Willful,  Milicious. — It  is  not  necessary  in  an  ac- 
tion for  a  simple  assault  and  battery  to  charge  in  terras  that  it 
was  '*  willful "  or  "  malici  .us,"  to  entitle  the  plaintiff  to  maintain 
his  action.* 

§  1633.  The  Sam3— Short  PDrm. 

Form  No.  4^4- 
[Title.] 

The  plaintiff  complains,  and  alleges : 

I.  Thai  on  the    d:iv  of  ,  18...,  at  the  , 

the  defendant  assaulted  and  beat  him,  to  his  damage    

dollars. 

[Dkmavd  of  JtmaMBNT.] 

§  1634.    Married  Womn,  Allegation  of   Assault  by. 

Fuifn  No.  415. 

That  on  the day  of ,  18...,  the  defendant  C. 

E.,  she  being  then,  as  now,  the  wife  of  the  defendant  E.  F. 
[cont'nxie  as  in  preceding  form]. 

§  ld35.     The  Same — vT'ich  Special  Damages. 

jPor/rt  No.  416. 
[Titlb] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  tlie  day  of ,  18....,  at , 

the  defendant  assaulted  and  beat  the  plaintiff  until  he  became 
insensible. 

II.  That  the  plaintiff  was  thereby  disabled  from  attending 
to  his  business  for  weeks  thereafter,  and  was   compelled  to  pay 

dollars  for  medical  attendance,  and  has  been  ever 

since  disabled  [from  using  his  left  arm;  or  otherwise  state  the 
damage,  as  the  case  may  be],  to  his  damage dollars. 

[DkMAXD  07  JUDOMSNT.] 

*  1  CTi.  PI.  167;  Pease  V.Burt,  3D  iy,  •Commonwealth   v.    Stratton,  114 

4<»5:  Elliott  V.  Brown,  2  We  id    4*7;  Mass.  30^. 

Boles  V.  Pink^Tton.  7  Dana.  4')S ;  Hhii-  '  Commonwealth  v.  Adams,  1 14  Id. 

iief    V.  Elfes.  1.5   Ma-=8.   5?47 ;  BenneU  823. 

V.  ApieloI^  25  Weud.  371.  *  Andrtwa  v.  Stone,   10  Alino.  72. 


608  FORMS  OP  COMPLAINTS.  §   1636. 

§  163G.     Against  a  Corporation   for  Duma^es  Caused 
by  an  Assauit  and  Forci.'>le  E  ection  from  a  Car. 
Form  No.  417, 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  tlie  time  hereinafter  mentioned,  the  defendant  was, 
and  now  is  a  corporation,  duly  organized  under  and  pursuant  to 
the  laws   of  this   state,  and  was  the  owner  of  a  certain   railroad 

known   as   tlie railroad,   with  the  track,  cars,  and 

other   appurtenances  thereunto    belonging,  and  was   a   common 
carrier  of  passengers  from to  

II.  That  on  the day  of ,  18..,    at , 

the   defendant  with   unnecessary  violence  assaulted  the  plaintiff 
and  forcibly  ejected  him  from  one  of  its  cars. 

III.  That  the  plaintiff  was  thereby  disabled  from  attending 

to  his  business  for weeks  thereafter,  and  has  ever  since 

been  disabled  from  using  [his  left  foot  or  otherwise],  and  was 

compelled  to  pay dollars  for  medical  attendance,  to  the 

damage  of  the  plaintiff  dollars. 

[Demand  of  Judgment.] 

§  1637.  Conductor  of  Car. — The  right  of  a  car  conductor 
on  a  railroad  to  expel  a  passenger  for  non-payment  of  the  fare, 
must  be  exercised  in  such  a  manner  as  is  consistent  with  the 
safety  of  the  passenger's  life.  He  must  first  stop  the  car,  and  if 
he  attempts  to  eject  him  without  stopping  the  car,  the  passenger 
has  the  same  right  to  repel  the  attempt  that  he  has  to  resist 
a  direct  attempt  to  take  his  life.'  Although  a  person  may 
be  wrongfully  upon  the  cars,  the  conductor  must  use  reasonable 
care  and  prudence  in  removing  him.^ 

§  1638.  Corporation. — An  action  of  trespass  for  assault  and 
battery  will  lie  against  a  corporation,  if  it  has  power  to  authorize 
the  act  done,  and  has  done  so ;  and  a  servant  of  the  company  may 
be  joined  as  a  defendant.  * 

§  1639.  Damages. — In  cases  of  injury  to  the  person  from 
negligence  of  the  conductor  of  a  car,  the  law  does  notprescri[)e  any 
fixed  or  definite  rule  of  damages,  but  from  necessity  leaves  their 
assessment  to  the  good  sense  and  unbiased  judgment  of  the  jury.'* 

§  1640.  Exemplary  Damages. — A  railroad  company  may 
be  charged  with  exemplary  damages  for  injuries  done  with  force 
or  malice  to  a  passenger  by  a  conductor  of  said  company. ^ 

J  See  Sanford  v.  Eighth  Avenue  R.  *  AVIrioh  v.  Palmor,   24  Cal.  51Sj 

R.  Co..  -JS  N.  Y.  343."  cited  in  WtiPHton  v.  N.  B.  AM.  K.  ii. 

'  Klin^  V.  C.  P.  R.  R.  Co.,  37  Cal.  400.  Co  ,  3H  Id.  5'.»0. 

»  Hro.vMw   V.  N.   J.  R.  &  T.  Co.,  8  *  H  .lu.nore  &  Ohio  R.   R.  Co.    V. 

Vroom,  328.  Blocker,  27  Md.277. 


§   1644.  FOR  ASSAULT  AND  BATTERY.  609 

§  1641.  Master  ancl  Servant. — The  master  is  liable  for  the 
servant,  if  he  acts  witliin  the  scope  of  his  authority.^  The  rela- 
tion of  conductor  on  a  car  and  the  oompany  for  whom  he  is  act- 
ing as  conductor  is  that  of  master  and  servant,  and  the  relation 
being  established,  all  else  is  mode  and  manner,  and  as  to  that 
the  master  is  responsible.* 

§  1642.  Forcibl9  Ejection. — If  a  person  be  of  mature  years, 
the  mere  words  of  the  driver,  ordering  him  to  get  off,  could  not 
be  regarded  as  a  forcible  ejection  of  the  plaintiff  from  the  car  at 
a  time  when  it  was  dangerous  to  leave  it ;  but  if  a  child  of  ten 
years  of  age  was  so  ordered,  his  obedience  would  be  naturally 
expected,  without  regard  to  the  risk  he  might  incur,  and  in 
respect  to  a  child  so  young  the  command  would  be  equivalent 
to  com  puis  ion.  3 

§  1643.  Mutual  Neglisenc^.— If  the  plaintiff  be  in  the 
wrong,  3'et  if  his  wrong  or  negligence  is  remote — that  is,  does 
not  immediately  accoraoany  the  transaction  from  which  his 
injury  resulted — the  defendant  can  not  excuse  himself  on  the 
score  of  mutuality,  nor  absolve  himself  from  his  obligarion  to 
exercise  reasonable  care  and  prudence  in  what  he  may  do.*  So 
the  entry  on  a  car,  if  an  accomplished  fact,  is  only  a  remote 
cause  of  the  injury  inflicted  by  a  subsequent  ejection  from  the 
car;  nor  did  it  absolve  the  conductor  from  the  duty  of  observ- 
ing reasonable  care  and  prudence  in  putting  him  off  the  train.* 
Mutual  or  co-operating  negligence,  which  deprives  one  party  of 
any  right  of  action  against  the  other,  is  when  the  act  which 
produced  the  injury  would  not  have  occurred  but  for  the  com- 
bined negligence  of  both.  But  where  the  negligence  of  one 
party  would  produce  injury  in  any  ev.-nt.  with  or  without  the 
negligence  of  the  other,  then  it  becomes  a  mere  question  of 
adjustment  of  damages.^  Where  neglgenoe  exists  on  both 
sides,  that  of  the  plaintiff  must  have  contributed  to  the  injury, 
or  it  will  not  excuse  the  defendant.''' 

§  1644.  Rsmoviag  Trespassers. — A  mnn  can  not  lawfully 
push  another  off  from  his  land  without  first  reques;ing  him  to 
get  off.8     But  mechanics   in  charge  of  a  house  whicL  they  are 

*  Kline  v.  a  P.  R.  R.  Co.,  37  Cal.  son  with  the  belipf  that  it  will  be  em- 

400.  ployed,  mu^j  h^-  held  to  be  theequiva- 

»  [d.  lent  ofBclUMl  firce." 
3  Lovptt  V.  Salpm  &  Sonth  Danvera        ♦  Kline  v.  C.  P.  R.  R.  Co*,  87  CaL 

B.    R.  Co..  9  Allen  (Mhss.).  561 ;  cii-d  400. 

in   Kline  v.  Centrnl  Pncific  R.  K.  C<>.        *  Id. 

of  Cal.,  37  ChI.  400;  where  it  goes  on        «  Thomas  v.  Kenron.  T  Daly,  1^2, 

to  state:  "We  have  no  doubt  thnt  in        "<  Haley  v.  E«rlf,':^0  N.  Y.  "iOS. 

case  a  show  or  demonstration  of  torce        '  Thompaoa  v.  Rercj,  1  Crauch.  Gl 

suffioient  io  impress  a  reasouttble  per-  CU  45. 
EsTKJS.  Vol..  1 — 89. 


610  '  FORMS  OF  COMPLAINTS.  §   1645. 

buiVling  have  a  right  to  remove  gently  persons  coming  into  the 
fbuikling  without  authority,  if  they  will  not  depart  upon  re- 
quest.^ Tlie  abuse  of  legal  authority  which  will  make  a  person 
a  trespasser  ab  initio,  is  the  abuse  of  some  special  and  particular 
•authority  given  by  law ;  and  the  doctrine  does  not  apply  to  the 
<case  of  an  agent  in  a  factory  who  uses  improper  force  in  eject- 
ing a  disorderly  person  employed  there. * 
§  i  645.    Assault  and  False  Imprisonment^Short  Form. 

Form  No.  418. 
[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  the  defendant 

Assaulted  and  beat  the  plaintiff,  and  imprisoned  him  for 

hours,  to  his  damage dollars. 

[Demand  of  Judgment.] 

§  1646.  Arrest. — The  circumstances  of  the  arrest  should 
Bot  be  set  out  in  the  complaint.  If  so  set  forth,  they  may  be 
stricken  out  upon  motion.^ 

§  1647.  Circumstances. — Allegations  of  the  circumstances 
in  detail  on  a  charge  of  false  imprisonment  and  assault,  in  con- 
nection with  an  illegal  combination  and  conspiracy,  were  al- 
lowed in  a  great  measure  to  stand."* 

§  1648.    The  Same— Fuller  Form. 

Foitn  No.  419. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  the  defendant 

assaulted  the  plaintiff,  and  charged  him  with  [state  what  offense] , 
and  gave  him  into  the  custodj'^  of  a  policeman,  and  forced  and 
compelled  him  to  go  to  a  police  station,  and  there  caused  him 
to  be  imprisoned,  and  caused  him  to  be  kept  in  prison  for  a 
long  time,  until  he  was   afterwards   brought   in  custody  before 

one  of  the  police  magistrates  of ,  and  the  defendant 

then  again  charged  him  with  the  said  offense ;  but  the  said  mag- 
istrate dismissed  the  said  charge,  and  caused  him  to  be  dis- 
charged out  of  custody. 

II.  That  the  plaintiff  thereby  suffered  damage  in  the  amoant 
of dollars. 

[Demand  or  Judgment.] 

>  Unitpd  States V.  Bartle,  1  Cranch  'Eddy  v.  Beaoh,  7  Abb.  Pr.  17; 
C.  {  t.  2m.  ShHW  V.  Jayne,  4  How  Pr.  119 

«  Esiy  V.  Wilmot,  15  Gray,  168.  *  Molony"  v.  Dow»,  15  How.  Pr.  261. 


§1655.  FOK  FALSE  mPRISONMENT.  611 


CH  \PTER  n. 

FOR  FALSE  IMPKISONMEiJlL 

f  1649.    Common  Form. 

Form  No.  4S0, 

[TlTLB  ] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of  ,  18...,  at ,  the 

defendant  imprisoned   him   for days  [or  hours,  as  the 

case  miy  be],  without  probable   cause    [state  special  damages, 

if  anyj,  to  the  damage  of  the  plaintiff dollars. 

[Demand  of  Judqmbnt.] 

§  1650.  Arrest  wit'.iout  Proof. — A  person  who  without 
bad  faith  or  malice  has,  upon  oath,  or  otherwise,  merely  stated 
his  case  to  a  magistrate  having  jurisdiction  of  the  offense  sup- 
posed to  have  been  committed,  and  of  the  person  accused,  is 
not  liable  to  an  action  for  false  imprisonment  upon  the  conse- 
quent arrest  of  the  accused,  al  hough  such  arrest  is  not  war- 
ranted by  the  law  or  the  facts  in  the  case.^ 

§  1651.  Circumstances  of  Arrest. — The  particular  instru- 
mentality by  which  the  plamtiff  was  deprived  of  his  liberty 
should  not  be  set  out  in  the  complaint.  If  the  circumstances 
of  the  arrest  are  set  forth,  they  may  be  struck  out  upon  motion.' 

§  1652.  Corporation. — A  corporation  may  be  sued  in  tres- 
pass for  false  imprisonment. ^ 

§  1653.  Election  of  Remedy. — A  plaintiff  has  an  election 
of  remedy  between  an  action  for  false  imprisonment  and  mali- 
cious prosecution,  where  either  form  is  admissible.*      • 

§  1654.  False  Imprisonment  Defined. — False  imprison- 
ment is  the  unlawful  violation  of  the  personal  liberty  of  an- 
other.^ As  a  crime,  false  imprisonment  is  not  a  felony  under  the 
laws  of  California.^ 

§  1655.  False  Imprisonment,  What  It  Avoids. — One  who 
obtains  possession  of  personal  property  by  threat  of   wrongful 

'  Von  L«fham  v.  Libby,  88  B^rb.  to  what  extent  sucb   allesjations   are 

839;  citiiis;  Cnrrattv.  Morelv,  I  A.  &  allowe'i  to  iiaud,  see  Molony  t.  Dews, 

E.  (N.  S.)  18;  Barber  v.  R'.llinaon.  I  15  Id.  266. 

C.&M..  3o0;  Westv.  SmuUwood.  3  M.  »  Owsley  v.  Montaro^^ory  &  W.  P. 

&  W.  418;  6   Man.  G.  &  S    8b6;  22  R  R.  Co.,  87  Ala.  StiO 

"Wmid.  552;  and  disapprovins:   Com-  *  Von    LHtham  v.  Libby  et  al.,  88 

fort  V.  Fulton.  Vi  Abb.  Pr.  .'76;  Liv.  Barb.  839;  17  Abb.Pr.  237;  Brown  y, 

ingston   V.  Burrou6:bs,  38   Mich.  611.  ChHdsev.  39  Barb.  258. 

«Eddv   V    Beach,  7   Abb.    Pr.   17;  &  C  i."  Pen.  Cnde.  shc.  286. 

Shaw  v.*^  Ja^utt.  1  How.  Pr.  1 19.    As  •  Peu^iu  v.  Ebuer,  2a  Cal.  158. 


612  FUIIMS  OF  COMi'LAINTS.  §   1G56. 

imnrisonment  acquires  no  tit'e,  a-ul  sxxoh  tr-insaction  is  void  ^ 
Error  of  judgment  on  the  pan  <>f  lue  uiag.sirale  will  not  reuder 
the  process  issued  by  li'm  Vv)iti.2 

§  1656.  Malice. — Malice  and  falsehood  are  essential  ingre- 
dients in  an  action  for  malicious  prosecution,  but  are  ntjt  essen- 
tial to  an  action  for  false  iin')rtsomnent,  in  which,  however,  the 
element  of  want  of  probable  cause  is  necessary. ^ 

§  1657.  Principal  and  Agent. — Where  a  private  person 
takes  any  part  in  the  unlawful  imprisonment  of  another,  he  be- 
comes a  principal  in  the  act,  and  is  liable  for  the  tres[)a3s ;  but 
where  he  merely  communicates  facts  or  circumstances  of  suspi- 
cion to  officers,  leaving  them  to  act  upon  them  on  their  own 
judgment  and  responsibility,  he  is  not  liable.^  A  shopkeeper  is 
not  liable  for  the  act  of  his  superintendent  and  clerks,  in  calling 
a  policeman  and  causing  the  arrest  and  search  of  a  woman  sus- 
pected of  stealing  goods,  if  done  without  his  authority,  express 
or  implied.^ 

§  1658.  Sufflcient  Averment. — In  order  to  sustain  a  charge 
for  false  imprisonment,  it  is  not  necessary  for  the  plaintiff  to 
show  that  the  defendant  used  violence,  or  laid  hands  on  him,  or 
shut  him  up  in  a  jail  or  prison  ;  but  it  is  sufficient  to  show  that 
the  defendant,  at  any  place  or  time,  in  any  manner  restrained  the 
plaintiff  of  his  liberty,  or  detained  him  in  any  manner  from  going 
where  he  wished,  or  prevented  him  from  doing  what  he  desired.' 

§  1659.  Void  Process. — One  who  procures  the  arrest  and 
imprisonment  of  another  upon  void  process,  is  liable  in  an  ac- 
tion for  false  imprisonment ;  and  mere  good  faith  in  making  the 
affidavit  by  virtue  of  which  the  arrest  is  made,  is  no  defense.' 

§  1660.  Want  of  Jurisdiction. — Where  one  is  arrested, 
tried,  and  convicted  of  an  act  which,  if  it  were  an  offense,  was 
one  of  which  the  court  had  no  jurisdiction,  his  imprisonment  can 
not  afterwards  be  justified  by  showing  that  the  evidence  at  the 
trial  would  have  convicted  him  of  another  offense  which  was  triable 
in  that  court.^ 

§  1661.  Where  and  When  Action  Lies.— Though  the 
original  arrest  be  warrantable,  an  action  for  false  imprisonment 
lies  for  any  subsequent  oppression  or  cruelty. ^     Action  for  ma- 

» Richarda  v.  Vanderpoel,  1  Daly,  »  Mali  v.  Lord,  89  N.  Y.  381. 

71.  «  Hawk  V.  Ridtfwav,  33  111.  473. 

»  Von  Latham  v.  Libby,  88  Barb.  ''  Painter  v.  Ives,  4  Neb.  122;  Hal- 

839;  17  Abb.  Pr.  237.  lock  v.  Dominy,  14  N.  Y.  Sup.  Ct.  52; 

8  Piatt  V.  Niles,  1  Edm.2.30.  Sheldon  v.  Hill,  33  Mich.  171. 

*  7  Car.  &  P.  373;  Burns  v.  Erhen,  *  Wait  v.  Green,  5  Park.  Cr.  185. 

2R  How.  Pr.  273;   Brown  v,  Chadaey  »  1  T,  R.  586;  Esp.  Dig.  33:i;  I>oyle 

•6\i  Barb.  253.  T.  Eussell,  30  Barb.  300. 


§   1664.  FOR  FALSE  IMPRISONMENT.  613 

licions  prosecution  require  different  rules,  both  of  pleading  and 
evidence,  and  are  essentially  distinct.^  Where  imprisonment  only 
is  complained  of,  the  action  is  for  false  imprisonment.* 

§  1662.  W  lO  Liable. — VVliere  a  person  has  been  arrested 
upon  a  criminal  cliarge,  without  any  competent  evidence  of  his 
guilt,  the  magistrate  and  prosecutor  are  jointly  liable  to  an  action 
for  false  imprisonment.^ 

§  16G3.    The  Same— Another  Form. 

Form  No.  m. 
[Title.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the day  of  ,  18...,  at  , 

the  defendant,  by  force,  compelled  the  plaintiff  to  go  with  him  to 
the  police  office  [or  otherwise],  and  there  imprisoned  him,  and 
then  and  there  detained  him  restrained  of  his  liberty  for  the  space 

of days,  without  probable  cause  and  without  any  right 

or  authority  so  to  do,  and  a'^ainst  the  will  of  the  plaintiff; 
whereby  the  plaintiff  was  bruised  and  wounded,  and  was  also  in- 
jured in  his  credit,  and  was  prevented  from  attending  to  his  busi- 
ness (luring  that  time,  and  was  compelled  to  pay  dollars 

for  costs  and  counsel  fees  in  obtaining  his  discharge,  to  his  dam- 
age   dollars. 

[Demand  of  Judgmknt.] 

§  1664.  Special  Daiia^e. — Allegation  of  special  damage  by 
reason  of  the  imprisonment  may  be  inserted  in  the  complaint.* 
In  an  action  for  false  imprisonment  against  a  justice  of  the 
peace,  it  was  held  that  the  plaintiff  could  not  recover  in  dam- 
ages the  amount  of  costs  incurred  by  him  in  an  unsuccessful 
application  for  his  discharge  on  a  writ  of  habeas  corpint,  such 
costs  not  having  been  alleged  as  special  damages  in  the  com- 
plaint.* 

*  Brown  v.  Clia<lsev,  39  Barb.  253.  But  in  the  same  case  allegations  of  asj- 
'  Burns  V.  Erbt-n,  2tt  H>»w.  Pr.  278.  grnvating  circuiusLaiices  were  struck 
«  Comfort  V.  Fulton,    18   Abb.  Pr.      ouu 

27tj.     Hut  see,  for  quHlification  of  this  *  Spenoe  v.  Neynell,  2  Npw   Ma"; 

stHtPmeiit,  Von  Laibam  v.  Libby,  38  C««.  19;  contra,  WilUains  v.  Garret^ 

Barb.  3:59.  12  How  fr.lJti. 

*  Aloionj  V.  DowSi  15  How.  Pr.  2G6. 


614  FOUMS  OF  COAIPLAINTS,  §  i6Go. 


CHAPTER    in. 

LIBEL  AI^D  SLANDER. 

§  1665.    For  Libel— The    Words    being  Libelous  in 
Themselves. 

Form  No.  429. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the day  of ,  18...,  at  , 

the  defendant  published  a  newspaper  called  the [or  in 

a  letter  addressed  to  C.  D.],  the  following  words  of  and  con- 
cerning the  plaintiff  [set  forth  the  words  used.] 

II.  That  the  said  publication  was  false  and  defamatory. 

III.  That  by  means  of  said  false  and  defamatory  publication 

the  plaintiff  was  injured  in  his  reputation,  to  his  damage 

dollars. 

[Demand  or  Judgmknt.] 

§  1666.  Allegations  Matsrial. — The  material  allegrations 
in  an  action  of  libel,  where  words  are  defamatory  on  their  face, 
and  in  the  English  language,  are:  (First)  That  the  defendant  with 
malice  or  wrongfully  (Second)  published,  (Third)  of  and  con- 
cerning plaintiff,  (Fourth)  these  false  words.  In  slander,  in- 
stead of  alleging,  (Second)  "published,"  it  is  customary  to 
allege  "  that  he  spoke  in  the  presence  and  hearing  of  divers 
persons,"^  although  the  word  "  published  "  imports  ex  vi  termini^ 
a  speaking  in  the  presence  and  hearing  of  somebody. ^  From  a 
libel,  damage  is  always  implied  by  law ;  whereas  some  kinds  of 
slander  only  are  actionable  without  proof  of  special  damage. ^ 

§  1667.  The  Same— Concerning  the  Plaintiff.— In  an  ac- 
tion for  libel  or  slander,  it  is  not  necessary  to  state  in  the  com- 
plaint any  extrinsic  facts  for  the  purpose  of  showing  the  appli- 
cation to  the  plaintiff  of  the  defamatory  matter  out  of  which  the 
cause  of  action  arose ;  but  it  is  sufficient  to  state  generally,  that 
the  same  was  published  or  spoken  concerning  the  plaintiff ;  and 
if  such  allegation  be  controverted,  the  plaintiff  must  establish 
on  the  trial  that  it  was  so  published  or  spoken.* 

1  Wood  V.    Gilchrwt,  1    Codft    Re-  '  Rpoom's  Com.  513. 

portur,  117;  Anon.,  3  How.  Pr.  40^.  *  ChI.  Code  C.  P.,  sec  4*10;  gee  also 

»  Duel  V    Aijin,  1   Co.le   ti-r><)ripr,  N.  Y.  Code  oflS??,  spf.  58');   Lhws  of 

134;  sfeiilso  Lnitrntin  v.  Mvz   .i  Samlf.  Oretjon.  sec.  H8;  1    WuitU    i*r.  tiyi; 

734:  Mtid  D^baix  v.  Lehind,  1  Code  Van  iSantv.  271. 
B.,  N.  B.,  2o5. 


§   1669.  LIBEL  A5?D  SLANDER.  615 

§  1668.  The  Saiu3 — Intent— Motive. — There  may  or  may 
not  be  any  intent,  good  or  bad;  but  intent  or  no  intent,  the 
liability  is  for  the  act  and  its  consequences,  not  for  the  intent. 
The  usual  ground  upon  which  the  liability  is  placed,  is  that  the 
law  presumes  every  one  to  inte.id  the  necessary  and  natural 
consequences  of  his  acts.^ 

The  intent  with  which  the  action  is  done  is  by  no  means  the 
test  of  liability  of  a  party  to  an  action  of  trpspass.^  Bona  fides 
will  not  protect  a  magistrate  who  does  an  il.  -^al  act.^  It  is  im- 
material with  what  motive  a  man  does  an  unlawful  act.*  So  an 
assault  and  battery  committed  with  a  purpose  to  ridicule  the 
plaintiff  or  bring  him  into  contempt,  partakes  of  the  nature  of 
libel ;  and  in  order  to  recover  damages  for  the  injury  to  reputa- 
tion, as  well  as  for  that  to  the  person,  the  complaint  should  be 
for  assault  and  battery,  but  should  aver  intent  to  defame,  and 
injury  to  reputation,  in  addition  to  the  usual  averments  in  ac- 
tions for  assault  and  battery. ^  Thus,  averments  of  the  business 
of  the  parties,  that  the  assault  was  for  the  purpose  of  compelling 
the  plaintiff  to  give  up  his  business,  and  of  bringing  him  into 
disgrace  and  ridicule,  and  that  the  assault,  etc.,  caused  him  to 
be  ridiculed  by,  etc.,  though  not  essential  to  a  cause  of  action, 
are  not  immaterial.  The  motives  and  intent,  and  the  conse- 
quences resulting,  are  material  on  the  question  of  damages.^ 

§  1669.  The  Same — Language  Set  Out. — The  complaint 
should  set  out  the  very  words  published.'''  The  true  term  to  be 
us«  d  to  indicate  that  the  very  words  are  set  forth  is  "  tenor.  "^ 
It  is  not  enough  to  state  its  purport ;  ^  and  when  the  words 
were  published  in  a  foreign  language,  the  foreign  words  must 
be  set  forth  in  the  original,^*  together  with  a  translation  into 
English.^  To  set  forth  the  foreign  words  alone,  or  their  trans- 
lation alone,  is  not  sufficient.  ^^    The  rule  that  the  exact  language 

1  Hnire  V.  Wilson.  9  B.  «&  Cr.  fi43;  408:   Rundel   v.  Butler,  7  Barh.  260; 

VielH  V.  Gray.   10  Abb.  Pr.  1 ;  1  Esp.  Foisylhv.  E<1mision,  2  Ah  •.  Pr.  480; 

N.  P.  Cnses,  22!j;  lioot  v.    King,    7  Fimiertvv.  Barker,  7  N.  Y.  Leij.  Obs. 

Cow.  r,13.  317;    SullivHn  V.  White,  t?  Irish  Law 

*Guille   V.    Pw«n,  19  John?.  381;  K.  40;     Whiiaker  v.  FieemHn.  1  Dt'Y. 

Percival  v   Hickey,  18  Id.  2-57 ;    Tre-  27 1  ;  Lee  v.  Kane,  6  Gray  (Mass.),  495.; 

mnin  V.     Cuhoes'Co.,    2  Coinst.  Ib4;  Tavlor  v.  Moian,  4  Met.   (Kv.)    127;. 

Safford  V.  Wycoif,  1  Hill,  11.  Colnmonweaiih  v.  Wriirht,  1  Cu<h.46. 

*Prickett  v.  Grt^atrex,  1  New  Mag.  *  CommnnwHalth  v.  Wriiihl.  I  Cusb. 

Cn«  of';   7  L-w  Times,  1.39.  4*i:    vVrigiit  v.  (Jiemeiiis,  3  B.  &  Aid. 

*  Amick  V.  O'Haia,  6  Blackf.  (Ind.)  603 

2o«.  "  Wood  V.   Brown,  6  Taunt  169;  a. 

*  Comparft  Sbpldon  v.  Carpenter,  4     C.  1  En;;.  C  tn.  l..aw,  SiO. 

N   Y.  579;  Waisou  v.  Hazzard,  3  Code  »»  Z  -nobia  v.  Axiell.  6  T.  R.  162. 

B.2'>«.  "  TowiiMif-n.l  on  Slan.  and  Lib  4T2: 

6  R  >ot  V.  Foster.  9  How.  Pr.  .37.  '2  Warmon  h  v.    C-atner.    3   Wf-nd. 

*  Wesley   v.  Bmmelt,  5  Abb.   Pr.  391;    Leiiiuaii  v.  KiU,  &diUidLI34; 


6ltf  PORMS  OF  COMPLAINTS.  §   1670. 

used  should  be  set  out  does  not  render  it  necessary  to  set  forth 
the  whole  of  the  matter  published/  but  an  extract  of  the  par- 
ticular passage  complained  of.^ 

§  1670.  Malice  is  Presumed. — "When  the  words  published 
are  unambiguous,  and  not  capable  of  being  understood  in  any- 
other  sense  than  as  defamatory  to  an  extent  that  must  neces- 
sarily expose  the  plaintiff  to  contempt  and  ridicule,  they  are  by 
Implication  of  law  malicious.  It  is  not  necessary  to  allege  in 
the  complaint  that  the  publication  was  false  and  malicious. 
Such  an  allegation,  though  common  and  quite  proper,  is  a  mere 
matter  of  form,  the  lack  of  which  is  no  objection  to  a  plending.* 
That  the  words  are  "libel"  is  a  sufficient  allegation  of  false- 
hood and  malice.'*  So  a  general  averment  of  malice  is  sufficient.'' 
In  an  action  for  libel,  it  is  not  indispensable  to  use  the  word 
"maliciously"  in  the  declaration.  It  is  sufficient  if  words  of 
equivalent  power  or  import  are  used.* 

§  1671.  Malice,  ho^wr  Averred. — Any  form  of  words  from 
which  malice  [absence  of  excuse]  can  be  inferred,  as  that  the 
publication  was  made  falsely  or  wrongfully,  will  suffice.'  For 
one  meaning  of  malice  is  absence  of  legal  excuse. ^  And  a 
pleading  may  be  sufficient  without  an  special  averment  of 
malice.^  So  a  declaration  which  charged  the  publication  to  be 
"malicious,  injurious,  and  unlawful"  was  held  sufficient.^^  The 
averments  usual  in  old  precedents,  that  the  defendant,  well 
knowing  the  premises,  etc.,  maliciously  intending  to  injure  the 
plaintiff,  etc.,  and  to  bring  him  into  great  scandal  and  disgrace, 
and  to  cause  it  to  be  believed  that  the  plaintiff  bad  been  guilty, 
are  superfluous.^  So,  also,  that  the  defendant,  on,  etc.,  falsely 
and  maliciously  published,  etc.,  the  false,  malicious,  scandalous 
and  defamatory  matter  following,  is  unnecessary.  An  allega- 
tion that  the  publication  was  a  libel  has  been  held  eqnivalfnt 
to  an  allegation  that  it  was  false  and  malicious. ^^  In  all  cases 
where  the  facts  are  within  the  knowledge  of  the  defendant,  or 
,the   statement  involved  is   in  itself  libelous,  a  general  allegation 

'Keenholts  v.  Becker,  3  Den.  346;  12  Bennett,  5  Sandfl54;  Viele  v.  Gray 

Ind.  458 ;  Hickley  v-Grosj^an,  6  Blackf.  18  How.  Pr.  650. 
U51 ;  Kaliauser  v.  Schwerger  Barth,  8        ^  Purdy  v.  Carpenter,  6   How.  Pr. 

Watts,  28.  861. 

'1  Deyo  V.  Brundas:e,  13  How.  Pr.  «  White  v.  Nichols,  8  How.  U.S.  266. 
221 ;  Culver V.  Van  A.nden,  4  Abb.  Pr.  ^  Townshend  on  Slan.  and  Lib.  410. 
875 :   liox  V.  Brereton,  8  Mod.  329.  «  Id.  85. 

«  Cheeiham  v.   Tillotson,  6   Johns.        »  Opdykev.  Weed,  18  Abb.  Pr.  223, 

430.  notes. 

8  Hunt    V.  Bennett,  19   N.  Y.  173;         ^^  Rowe  v.  Roach.  1  Mau.  &  S.  804. 
Boot  V.  King;.  7  Cow.  620.  l'  Coleman  v.  Southwick,  9  n)htis.45. 

♦.Bee  above  authorities,  and  Fry  v.        i*  Hunt  v.  Beuuett,  19  N.  Y.  176. 


§   1674.  LIBEL  AND  SLANDER.  617 

of  malice  will  be  sufReient  without  any  statement  of  facta  and 
circumstances.^  So  express  malice,  or  want  of  probable  cause 
need  not  be  averred. ^ 

§  1672.  Malice,  when  not  Imi^lied. — Under  the  statute 
of  New  York  and  other  states,  in  actions  against  reporters, 
editors,  and  proprietors  of  newspapers  for  an  alleged  libel  in  the 
report  of  any  judicial,  legislative,  or  other  public  official  pro- 
ceeding, or  of  any  statement,  speech,  argument,  or  debate  in 
the  course  of  the  same,  malice  in  publishing  the  report  is  not 
implied  by  the  publication.^  An  accurate  report  in  a  newspaper 
of  a  debate  in  parliament,  containing  matter  disparaging  an  in- 
dividual is  not  actionable.  The  publication  is  privileged  on 
the  ground  that  the  advantage  of  publicity  to  the  community 
outweighs  any  private  injury;  and  comments  in  the  newspaper 
on  the  debate  are  so  far  privileged  that  they  are  not  actionable 
so  long  as  they  are  honest,  fair,  and  justified  by  the  circum- 
stances disclosed  in  the  debate.* 

§  1673.  PropristDr  and  Pablisher,  Liability  of. — In  a 
complaint  for  libel  it  is  a  sufficient  allegation  of  its  publication 
by  the  defendant  to  allege  that  he  was  the  proprietor  of  a  news- 
paper in  which  it  was  published,  without  otherwise  alleging  that 
he  published  it,  or  was  concerned  in  its  publication.^  A  receiver 
of  a  newspaper  concern,  pending  a  su  t  to  settle  the  partnership 
accounts  of  its  proprietors,  will  be  personally  resnonsible  for 
any  publication  therein  which  is  improper,  although  the  order 
of  his  appointment  directs  that  the  defendants  may  continue  to 
superintend  the  editorial  department.'  But  the  assignee  of  a 
newspaper  establishment,  as  a  collateral  security,  is  uot  liable 
for  a  libel  published  in  it.' 

§  1674.  Publication,  Averment  of. — Every  communica- 
tion of  language  from  one  to  another  is  a  publication  ;  but  to  con- 
stitute an  actionable  publication  it  is  essential  that  there  be  a 
publication  to  a  third  person,  and  the  husband  or  wife  of  either 
author  or  publisher,  or  of  the  one  whom  or  whose  affairs  the 
language  concerns,  is  regarded  as  a  third  person. ^     A  statement 

»  Yiple    V.  Gray,   10    AV.b.  Pr.  1;  »Htint  v.  Bprmptt.   19  N.  Y    173; 

Howrttd  V.    Sexton,    4    Comst.    157;  aflBriiiiii<»  S.  C,  i  K.  D.  Smith,  «47. 

Biildiiiirtm  V.  Dhvjs.  6  How.  Pr.  401.  «  M-trtea  v.  Vau  Soliaick,  4    Paige 

*  Purdy  V.   Carpenter,  6   How.    Pr.  Ch.  479. 

8'  1 ;  Liltlejohn  v.   Greeley,  13   Abb.  ^  As  to  the  efneral  dnctrinA  respect- 

Pi-  41.  ins;  the  liability  of  piiblisliei<  and  pro- 

*t)ee  Sandford  V.  Bennett,  24  N.  Y.  prietors  of  newspapers,    boi>ksfller8, 

20.  ♦'tc,   see    2   Grennl.  Ev.,  sec.  41^;  2 

*  Wa«on  V.  Walter,  Law  Rep.  4  Q.  Stark,  on  Slander,  28-34;  1  Carter 
B.  7-^:  "ee  also  Ackerman  v.  .lones,  o7  (Ind  )  844. 

N.  Y.  Sapr.  Ct.  (5  J.  &  Sp.)  4J.  *  Towiishend's  Slan.  and  Lib.  90. 


618  FORMS  OF  COMPLAINTS.  §   1675. 

that  the  defendant  was  proprietor  of  a  newspaper,  and  that  the 
■words  were  published  therein,  is  a  sufficient  averment  of  publi- 
cation.i  The  publication  must  be  alleged,  but  it  need  not  be 
set  forth  in  any  technical  form  of  words ;  *  but  it  must  be  alleged 
positively,  and  not  by  way  of  recital. ^  The  word  "  published" 
is  the  proper  and  technical  term  by  which  to  allege  publication,* 
but  any  equivalent  allegation  will  suffice.^  But  to  allege  that 
defendant  composed,  wrote,  and  delivered  a  certain  libel  ad- 
dressed to  the  plaintiff,  was  held  insufficient.*  That  defendant 
sent  a  letter  to  plaintiff,  which  was  received  and  read  by  him, 
does  not  show  a  sufficient  publication  ;  '  it  is  necessary  to  allege 
that  it  was  in  fact  seen  or  read  (by  others). ^  So  where  the 
writer  reads  to  a  stranger  his  letter  to  the  plaintiff,  before  dis- 
patching it,  it  is  a  publication. 9 

§  1675.  Libel  ani  Slander— Definition  of. — Slander  or 
libel  is  an  infringement  of  the  absolute  rights  of  persons,  as  the 
character  of  peisons  is  undoubtedly  one  of  their  absolute  and 
personal  rights.^"  A  libel  is  a  written  or  printed  slander. ^^  Libel 
is  a  false  and  unprivileged  publication  by  writing,  printing, 
picture,  effigy,  or  other  fixed  representation  to  the  eye,  which 
exposes  any  person  to  hatred,  contempt,  ridicule,  or  obloquy, 
or  which  causes  him  to  be  shunned  or  avoided,  or  which  has  a 
tendency  to  injure  him  in  his  occupation,^*  Libel  is  both  a 
public  wrong  or  crime,  and  a  private  wrong  or  tort,  cognizable 
by  the  common  law.  The  remedy  for  the  public  wrong  is  by 
indictment  or  criminal  information.  The  remedy  for  the  private 
wrong  is  a  civil  action  now  known  as  an  action  or  the  action  of 
or  for  libel.^3  xhe  rule  is  generally  laid  down  that  a  publication 
is  libelous  when  its  necessar}'  effect  is  to  diminish  the  plaintiff  's 
reputation  for  respectability,  impair  his  condition,  and  abridge 
his  comforts,  by  exposing  him  to    disgrace   and  ridicule.^*    In 

1  Hunt  V.  Bennett.  4    E.  D.  Smith,  >"  Holt  on  Libel,  15. 

647 ;  HtBrmed  19  N.  Y.  17;l  "  I  HillHrd  on  Tons,  c  7,  82. 

*  Baldwiiiv.Elphinston,  2W.  Black.  i*(Jh1.  Civ.  Code,  sec.  45;  sf-e,  also, 
1037.  Cal.  Pen.    Code,    sec    248;    G  s^e    v. 

8  Donna;lie  V.  Rankin,  4  Munf.  261.     Kobinson,   12   Ohio.    250;   Fisher    v. 

*  Staik  on  Slan.  359.  Fa-K-rson,  14  Id.  418. 

6  Towiishend    Sian.  and   Lib.  408;  "  Townshend  on  blander  and  Libel, 

Baldwin  v.  Elphinston,  2   W.  Black.  22. 

1037;  Waistedv.Holman,  2Hall.  172;  "Hunt  v.  Bpnnett,4   E.   P.  Smith 

Hunt  V.  Bennett,  4   E.  D.  Smith.  fi47.  647.     For     definition     of     lil)el,    .see 

*  VVaistel  v.  Holman,  2  Hall,  172.  Townshend  on  Slander  and  Libel,  31; 
1  Lvle  V.  Clason,  1  Cai.  581.  Burr.  Law  Diet.;  1  Hill  on  To-ts  c 
MJiles  V.  The  State,  6Ga.  276.  8,  313;  Holt  on  Libel,  218:  1  M^-nce 
»Sn\der  v.   Atidrews,  6    Barb.  4.?:  on  Libel.  125;  St<ele  v.  Snuthwuk,  9 

M'Combs  V.  Tuule,  5  Blarkf.  4.S1;  Johns.  214;  CoopfT  v.  .McElraih,  1 
Van  Cleef  v.  Lawrence,  2  Ciljr  Hall  Den.  347 ;  3  How.  U.  S.  2'i6 :  /  rnien- 
Becorder,  41.  trout    T.  Miraudu,  8    biackl'.   4-b ;   4 


§   1677.  LIBEL  AND  SLANDER.  619 

every  slander  there  are  two  acts,  composini^  and  publishing. 
In  every  libel  there  are  thr^'e  acts,  cornposinqr,  writing  and  pub- 
lishing. So  every  publication  of  iaiigu:ige  concerning  a  man  or 
his  affairs,  which  as  a  necessary  or  natural  and  proxim*\te  conse- 
quence occasions  pecuniary  loss  to  another,  is  prima  facie  a  slan- 
der, if  the  publication  be  oriil ;  and  a  libel  if  it  be  by  writing.* 

§  1676.  G.St  of  Aotioa.— L'ecuniary  loss  to  the  plaintiff  is 
the  gist  of  the  action  for  slander  or  libel.^  If  the  language 
published  has  not  occasioned  the  plaintiff  pecuniary  loss,  actual 
or  implied,  no  action  can  he  maintained.  And  actual  loss  must 
be  shown  to  have  been  sustained. ^  Whether  or  not  matter  is 
libelous  so  as  to  be  actionable,  depends  upon  the  style,  scope, 
spirit,  and  motive  of  the  puldicntion,  taken  in  its  entirety,  and 
the  inquiry  is  into  the  natural  effect  of  it,  not  only  upon  the 
public  generally,  but  upon  the  neighbors  and  friends  of  the 
person  aimed  at. ^ 

§1677.  Joinder  of  Causes  of  Action  and  Parties. — It 
would  seem  that  plaintiff  may  unite  in  one  complaint  a  cause 
of  action  for  slander  with  a  cau  >e  of  action  for  libel,  or  for  ma- 
licious prosecution.^  But  a  cau-e  of  action  in  a  plain; iff  singly 
for  slander  of  him  in  his  partnership  business  can  not  be  joined 
■with  a  cause  of  action  in  him  and  his  partners  jointly.^  And 
where  a  comi)laint  contains  several  causes  of  action,  each  must 
be  separately  stated  and  nunil)ered,''  and  must  be  complete  in 
itself.^  Where  several  are  inclnded  in  the  same  libel,  they  may 
each  maintain  a  separate  action  for  the  injury.^  An  action  of 
libel  lies  agtiin^ttwo  or  more,  if  the  act  be  joint  and  done  by  all.'® 
Where  a  pulilication  affects  a  class  of  persons,  no  individual  of 
that  class  can  maintain  an  action. ^^  In  libel,  all  who  can  concur 
in  the  pulilication  may  be  sued  together,  though  the  general  rule 
is  otherwise  as  to  slander,  as  words  uttered  by  one  are  not  the 
words  of  another. ^^     But  if  one  repeats,  and  another  writes,  and 

Mass.  115;  M.  IRS.  1fi7;Mcror<1,  317;  «  Robinson    v.  Marchant,    7  Q.  B. 

Carfev  V.  Allpti.  89  Wis.  482;  Hand  v.  918. 

Winton,   3«  N.  .J.    L.   122;   Bv.-is  v.  '  Pike  v.  Van  Wormer,  6  IIow.  Pr. 

JlHriiii,  2   Col.  T.  605;    Williama  v.  171. 

Godkin.  5  DhIv,  499.  »  llolton  v.  Muzzy,  SO  Vt.  .Sfif> ;  Sin- 

*  Townsheiiii's  Slander  and  Libel,  68,  clnir  v.  FiU  h.  3  E.  D.  bmilh,  G69 ;  see 

*  Id.  57.  p.  395.  noiell.                              • 

»  Borthwrich  on  Libels,  4.  »  ~^mnrt  v.  Blanobard.  42  N.  H.  137, 

^M.'tfalt  V.  Cauldwell,  3  Hnn,  2«;  i"  Thomas  v.  Riimsiv,  6  .|..hr.s.26» 

Sanderson  v.  Caldwell,  45  N.  Y  S9S.  GIhss  v.  Stewart.  10  Se'ri:.  &  H.  222. 

»  Mnnin  v.  Mattisoii,  8  Anb.  Pr.  3;  "  White  v.   Di-lavan,  17  Wend.  49; 

Hull  V.  Vreeland.  42  B:irb.  ■S43;  3  Binsj.  but  see  Ryikiuan  v.    Delavan,  26  Id. 

/N.  C.)'»50.     Or  for  slander  of  tiliH.-  18fi. 

Cousins  V.  Merrill,  1«  Up.  Can.  C  P.  "Forsyth  v.  Edmiston,  2  Abb.  Pr- 

Rep.  114.  480. 


620  FORMS  OF  COMPLAINTS.  §    1G78. 

a  third  approves  what  is  written,  all  are  liable.^  Partners  may 
sue  for  libel  upon  them,  in  respect  to  their  business,  but  can  re- 
cover only  for  injury  to  their  firm.*  For  a  libel  on  partners,  all 
the  partners  may  sue  together.^ 

§  1678.  Piivileged  Communications. — As  examples  of 
communications  which  have  held  to  be  privileged  are  a  memorial 
to  the  postraasler-general,  charging  fraud  against  a  successful 
candidate  for  a  contract.*  A  physician  granting  a  certificate  of 
lunacy,  pursuant  to  statute.^  A  charge  preferred  by  one  mem- 
ber of  a  lodge  against  another.^  Words  spoken  or  written  in  a 
legal  proceeding,  pertinent  and  material  to  the  subject  of  the 
controversy  are  privileged.'  A  written  communication  from  a 
banker  in  the  country  to  a  mercantile  firm  in  the  ciiy,  in  rcsjiect 
to  the  pecuniary  responsibility  of  a  party  whose  note  had  been 
forwarded  for  collection. ^  The  withdrawal  by  an  employer  of  a 
former  recommendation  of  a  discharged  emi)loyee  is  privileged,  un- 
less it  is  shown  to  be  malicious.^  The  publication  of  a  slander  by  a 
murderer  at  the  time  of  his  execution  is  not  privileged.^**  So  pro- 
ceedings before  a  grand  jury  are  not  privileged. ^^  'Jhe  comments 
on  privileged  communications  are  not  protected,  if  libelous  them- 
selves.^^ The  defendant,  in  a  privileged  communication  discril>ed 
the  plaintiff's  conduct  as  "  most  disgraceful  and  dishonest."  The 
conduct  so  described  was  equivocal,  and  might  honestly  have  been 
supposed  by  the  defendant  to  be  as  he  described  it ;  it  was  held 
that  the  above  words  were  not  of  themselves  evidence  of  actual 
malice. ^3 

§  1G79.  Sitire. — ^The  distinction  between  the  satirist  and  the 
libeler  is  that  one  speaks  of  the  species,  the  other  of  the  individ- 
ual.^* So  an  action  for  libel  will  only  lie  upon  words  concern- 
ing distinguishable  persons,  and  can  not  be  brought  upon 
words  which  relate  to  a  class  or  order  of  meu.^^    But  it  must  be 

*  Thomas  v.Tlnmspy,  6  Johns.  26.  **  Edsflll  v.  Brooks,    26   How.  Pr. 
«  Taylor  V.  Church,  1  E.  D.  bmith,     426  ;  17  Abb.  Pr.  221. 

279.  »' Spill  V.   Maule,   L.   R.    4   Exch. 

'  T«ylor  V.   Church,   4    Seld.  452;  2^)2.     For  adililiouHl  communications 

Bee  8.  (.'.,  1  E.  D.  Smith,  s?tp?-a.  which    are    di'(-me(i    privi  es;id,    see 

*  Cook  V.  Hill,  SSaiidt'.  341  ;  Bud-  Ackerman  v.  Jones,  37  N.  Y.  Supr.  (5 
dinj^lon  V.  Uavis,  6  How.  Pr.  401.  J.  &Sp.)42.    As  to  liability  of  propri- 

*  Perkins  V.  Mitchell,  31  Barb  4(31.  etors  of  a  mercantile  asji-ncy  for  slate- 

*  Strtiety  V.  Wood,  15  B.ub.  10''.  ments  respecting  the  financial  standing 
">  Garr  v.  SiMdon.  4  Comst.  91 ;  Per-     and  credit  of  a  merchant,  see  Su  der- 

kins  V.  Mitchell,  31  Barb.  461.  linv.  Bradstreet,  46  N.  Y.  Is8,  where 

*  Lewis  V.  Chapman.  16  N.  Y.  369 ;  it  is  held  they  are  liable  tor  a  false  re- 
revi'isiiij^  same  case,  19  BarK  2')2.  p^rt,  though  made  in  pi><>d  faith.     For 

*  Fowles  V.  Buwen,  30  N.  Y.  20.  a  case  dt't)endinjj  upon  special    facts, 
W  Santord  V.    Bermeit,  24  N.  Y.  20.      see  Klinck  v.  Colby,  46  N.  Y.  4J7. 

*'  McCube  V.  Cauldwell,    18    Abb.         ^*  Joseph  Andrew",  vol.  2.  p.  5. 
Tr.  S77.  1^  Suuiiiur  v.  Buell,  12  Johiu.  475* 


§   1G84.  LIBEL  AND  SLANDER.  621 

mnnifest  unon  the  face  of  the  publication  that  the  charges  made 
were  intended  against  a  class,  profession,  or  order  of  men,  and 
can  not  by  possibility  impart  a  personal  application  tenuiug  to 
privnte  injury.^ 

§  1680.  Spscial  Damages. — Those  damages  whiph  are  not 
the  necessary  consequence  of  the  language  complained  of  must 
be  specially  alleged  in  the  complaint.^  But  a  complaint  in  an 
action  for  w  rds  in  writing  charging  insanity  need  not  allege 
special  damage.'  So  in  an  action  by  one  of  several  partners.* 
An  action  can  not  be  maintained  by  an  author  for  a  publication 
disparaging  his  copyright  work,  without  an  allegation  of  spe- 
cial damages. 5 

§  1681.  Exemplary  Damagss. — If  the  injury  was  willful 
or  intentional,  if  the  express  malice  is  proved,  the  jury  are  at 
liberty  to  award  damages,  not  only  to  compensate  the  actual 
anl  pecuniary  loss  upon  the  ground  of  compensation  for  men- 
tal suffering,  public  disgrace,  etc.,  but  they  may  further  awai'd 
exemplary  damages.^ 

§  1G82.  Namss  of  Customers  Lost.— As  a  general  rule, 
the  names  of  persons  who  have  refused  to  deal  witii  the  plaint- 
iff must  be  stated.'''  But  if  it  is  in  the  nature  of  things  imprac- 
tical ile  for  him  to  know  them,  he  may  prove  general  loss  of 
business.^  It  is  properly  a  question  of  evidence  which  can  not 
be  settled  before  the  tiMal. 

§  1683.  Corporations. — A  corporation  aggregate  has  the 
capacity  to  compose  and  publish  a  libel,  and  by  reason  thereof, 
when  done,  becomes  liable  to  an  action  for  damages,  by  the 
person  of  and  concerning  whom  the  words  are  composed  and 
published.^ 

§  1684.  For  Libel— The  Words  not  Being  Libelous  in 
Themselves. 

Form  No.  4SS, 
[T     LE.] 

The  plaintiff  complains,  and  alleges: 

1  Ryckman  v.   Delavan,  25  Wend.  ♦  Robinson  ▼.  Marchant,  7  Q.  B. 

186;  reversing  White  v.  Delavaa,  17  918. 

Id    50  ^  Swan  v.  Tappan.  5  Gush.  104. 

"Sq'uier   v.  Gould,   14  Wend.  159;  «  Fry  v.  Bennett,  1  Abh.   I»r.  28!>; 

Birch  V.  Benton,  26    Mo.  155;  .John-  Hunt  v.  Bennett,   19  N.  Y.  173;   but 

son  V.  Robertson,  8  Port.  486 ;  Barnes  see  2  Greenl.  Ev..  sec.  253 ;  and  Dain 

V.  Trundy,  31  Me.  321 ;    Bostwick  v.  v.  Wykoff,  7  N.  Y.  191. 

Nickelson,   Kirby,    65;    Bostwick    v.  ^  Linden  v.  Grthara,  1  Duer,  670. 

Hawley,   Id.   290;    Shipman   v.    Bur-  s  Evans  v.  Harries,  1  Hurlst.  «&  N. 

rows,  "l  Hall,  399;  Harcourt  v.  Har-  251.                                     .   „      ^, 

rison.  Id.  474 ;    Wilson   v.   Runyon,  »  Maynard  v.  Fireman's  Fund  Ins. 

Wright,  651.  Co.,  34  Cal.  48. 

»  Perkins  v.  Mitchell,  31  Barb.  461. 


622  FORMS  OF  COMPLAINTS.  §   1685. 

I.  That  the  plaintiff  is,  and  was,  on  and  before  the 

day  of ,  18....,  a  merchant,  doing  business  in  the  city 

of 

II.  That  on  the day  of ,  18....,  at , 

the  defendant  published  a  newspaper  called  the  [or 

in  a  letter  addressed  to  E.  F.,  or  otherwise  show  how  pub- 
lished], the  foIlowin'T  words  concerning  the  plaintilf:  [*' A.  B., 
of  this  city,  has  modestly  retired  to   foreign  lands.     It   is    said 

that  creditors  to  the  amount  of   dollars  are  anxiously 

seeking  his  address."] 

III.  That  the  defendant  meant  thereby  that  [the  plaintiff  had 
absc  'nded  to  avoid  his  creditors,  and  with  intent  to  defraud 
them]. 

IV.  That  the  publication  was  false. 

[DEMAND  OF  JUDGMBNT.]! 

§  16S5.  Ambiguous  Article. — It  may  be  averred  of  an  am- 
biguous article  that  it  was  published  with  a  particular  intent, 
and  was  so  understood  by  its  readers,  and  this  averment  may 
be  proved  on  the  trial.'  This  is  more  strictly  correct  than  to 
employ  an  innuendo  for  the  same  purpose. ^ 

§  1686.  Capacity  must  be  Averred. — ^When  the  words 
charged  bear  relation  to  the  plaintiff  in  his  business  or  official 
capacity,  such  capacity  should  be  averred  in  a  traversible  form 
in  the  complaint  ;^  and  the  fact  of  his  being  engaged  in  such 
business  or  profession  at  the  time  the  words  were  spoken  should 
be  alleged.^  In  such  an  action  special  damages  need  not  be 
alleged.  8 

§  1687.  Construction. — Where  the  words  alleged  in  a  com- 
plaint for  libel  are  fairly  susceptible  of  a  construction  which 
would  render  them  libelous,  the  complaint  will  be  sustained 
upon  demurrer,  although  the  words  may  also  be  interpreted  so 
as  to  be  innocent.'  Where,  in  an  action  for  libel,  the  words 
coroplained  of  are  not  per  se  libelous,  what  the  defendant  in- 
tended and  understood  them  to  mean,  by  those  to  whom  they 
were  published,  constitutes  a  proper  subject  of  averment  in 
pleading  and  proof  on  the  trial,  and  if  what  was  so  intended 
and  understood   by  the   defendant,  and  understood  by  those  to 

>  This  form  is  frnm  the  New  York  «  Butler  v.  Howes.  7  Cal.  87.  A» 
Oode  Commissioners'  Book  of  Forms,     to  the    responsibility  of  nn  editor  in 

*  (iibson  V.  Williams,  4  Wend.  320.     respect  to  comments  upon   the  man- 

>  Blaiadell  V.  Kaymoad,  4  Abb.  Pr.  a'j:er  of  a  theater,  see  Fry  v.  B<'nnett, 
446.  8    Bosw.  200;   Id.,  6  8aiidf.  64;  Id^ 

♦  2  Greenl.  Ev.,   gee  412 ;  Carroll  v.     4  Duer,  247. 

"White,  33  Barb.  615.  '  Wesley   v.  Bennett,    5  Abb.  Pr. 

»  Carroll  v.  While,  83  Barb.  615.  498. 


§   1G89.  LIBEL  AND  SLANDER.  623 

whom    the    words    were  pulisbed,    was  libelous,  the  words  are 
actionable.^ 

§  1688.  Eztrinsic  Facts. — TVhere  the  actionable  quality  of 
language  depends  upon  tiie  capacity  of  the  plaintiff,  and  the 
language  itself  does  not  disclose  that  he  is  in  such  capacity  or 
occupation,  an  averment  that  plaintiff  is  of  such  a  trade  or  pro- 
fession will  be  sufficient.  But  where  the  language  is  actionable 
of  the  plaintiff  as  an  individaul  also,  it  is  not  necessary  to  allege 
an  inducement. 2  When  the  words  used  by  the  defendant  do 
not  of  themselves  convey  tlie  meaning  which  the  plaintiff  would 
attribute  to  them,  and  such  meaning  results  only  from  some 
extrinsic  matter  or  fact,  such  extrinsic  matter  or  fact  must  be 
alleged  in  the  complaint,  and  pioved  on  the  trial.  It  is  there- 
fore necessary  for  the  plaintiff  in  such  a  case  di-.tinctly  to  aver 
the  extrinsic  fact  upon  which  he  relies  to  make  the  publication 
libelous.3  Where  the  publication  is  not  defamatory  on  its  face, 
the  existence  of  extrinsic  facts  rendering  it  defamatory  must  be 
alleged.'*  But  where  it  is  not  essential,  such  statement  would 
be  mere  surplusage.*  By  the  statute  it  is  no  longer  necessary 
to  state  an  inducement.  So  in  New  York,  and  in  Missouri.^ 
So  also  in  Massachusetts,  where,  "  a  distinct  averment  in  regard 
to  the  person  spoken  of,  and  a  clear  reference  of  the  calumnious 
words  to  that  person,  is  all  that  is  required."  ' 

§  1689.  Innuendo. — The  offlee  of  an  innuendo  is  to  explain, 
not  to  extend,  what  has  gone  before,  and  it  can  not  enlarge  the 
meaning  of  words  unless  it  be  connected  with  some  matter  of 
fact  expressly  averred.^  Nor  can  it  change  the  ordinary  mean- 
ing of  language.*  Nor  introduce  new  matter.^"  It  is  only  a  link 
to  attach  together  facts  already  known  to  the  court. '^  It  can  not 
attribute  to  words  a  meaning  which  renders  them  actionable,^ 
without  a  prefatory  averment  of  extrinsic  facts  which  makes  them 

'  Maynard  v.  Fireman's  Fund  In-         '  Townshend  on  Slander  and  Libel, 

suraiK-e  C-.,  34  Ciil.  48.  897. 

*  Townshend  on  Slander  and  Libftl,  *  Srieber  v.  Wensol,  19  Mo,  513; 
400;  (rage  V.  Kobinaun,  12  (Joio,  and  Wisconsin,  Van  61}  ke  v.  Carpen- 
250.  ter,  7  Wis.  173. 

»  Caldwell    v.    Raymond,    2    Abb.  » Miller   v.     Parish,    8  Pick.  883; 

Pr,   193:   see  also,  Cass  V.  Andpison,  Stark,  on  SI  an.  390. 

33  Vt.   182;  Casien  V.   Andrews,   16  *  Patterson    v.   Edwards.    2   Gilm. 

Pick.  1.  720;    Van   Vechten    v.    Hopkins,    6 

*  I'ike  V.  Van  Worner,  5  How.  Pr.  Johns.  211. 

171 :  S.  C,  6  Id.  99 :  Fry  v.  B  ■imett.  5        »  Hays  v.  Mitchell,  7  Blackf.  117. 

Sandf.  64;  Dias  v.  Short,  16  How.  Pr.  *"  Nichols  v.    Packard,     16  Vu   83; 

822;   Blais.lell   v.    Rnvmond,   4  Abb.  Weir  v.  Hoss,  B  Ala.  8Sl. 
Pr.  446;   Carroll  v.    White.  33    Barb.         "  Cooke  on  Defanialion.  94. 
615;    Culver  v.  Van  Anden,  4  Abb.         »  Uoiton  V.  Muzzy,  30  Vl.  365. 
Fr.  376. 


624  FORMS  OF  COMPLAINTS.  §   1G90. 

slanderous.'  The  use  of  innuendoes  is  in  part  retnined  and  in 
part  dispi  used  with  under  our  system  of  pleadii)g.  If  the 
Words  used  are  not  libelous  per  se,  but  are  made  so  by  some 
extrinsic  matter  alle<?ed  by  way  of  inducement,  innuendoes  are 
necessary'  to  show  the  connection  of  such  woids  with  the  intrinsic 
facts.  So,  also,  where  the  publication  is  made  libelous  by  refer- 
ence to  extrinsic  matter  not  necessary  to  be  alleged.  In  such 
case,  the  extrinsic  fact  should  be  suggested  by  an  innuendo. 
Where  words  are  not  libelous  per  se,  the  extraneous  facts  must 
be  stated  in  the  introduction  or  inducement;  as  an  innuendo  can 
not  extend,  but  only  apply  the  words.*  The  employment  of  the 
innuendo  will  be  indulged  where  the  convenience  of  pleading 
demands  it,  though  in  some  cases  it  may  not  be  strictly  proper.^ 

§  1690.  Innuencloas,  wlien  not  Essential. — When  the  lan- 
guage is  not  in  itself  applicable  to  the  plaintiff,  no  innuendo  can 
make  it  so.'*  But  if  the  plaintiff  is  designated  by  another  name 
in  the  libel,  his  real  name  may  be  designated  by  an  innuendo.^ 
Where  it  is  desired  to  connect  the  words  charged  with  the  col- 
loquium, or  to  show  the  meaning  imputed  to  words  libelous  per 
se,  we  consider  that  innuendoes  may  be  dispensed  with ;  and  it 
will  always  be  unsafe  to  rely  on  an  innuendo,  unsupported  by  a 
distinct  prefatory  averment,  to  show  a  libelous  meaning  not 
evident  from  the  words  used.^ 

§  1691.  Letter. — A  complaint  which  alleges  that  defendant 
sent  a  letter  to  plaintiff,  and  that  the  same  was,  by  means  of 
such  sending  thereof,  received  and  read  by  plaintiff,  and  thereby 
published  by  the  plaintiff,  is  not  good ;  for  the  letter  is  pre- 
sumed to  be  sealed,  and  sending  a  letter  is  not  publication.' 
But  reading  aloud  a  letter  containing  libelous  matter  amounts 
to  publication. 8 

§  1692.  Libelous  Imputations. — Among  imputations  which 
are  libelous  are  an  imputation  of  the  receipt  of  money  for  pro- 
curing a  public  appointment;  an  imputation  of  insanity;* 
corruption  against  a  member   of  the  legislature  ;^^  a  statement 

1  Watts  V.  Greenlee,   2   Dev.   115;  *  Townshend's  Slan.    &   Lib.    114, 

Brown    v.  Brown,  14   Me.  317;   Bes-  426. 

wiik  V.   Chappel,   8     B.    Mon.   4Rf5;  *  flays  v.  Brierly,  4  Watts,  .'^Oi 

Dottarer  v.  Bushy,  16  Penn.  St.  207;  'As    to  proof  of  libelous  meaning 

2  Bilib,  319.  by    extraneous    evidence,  and   as    to 

*  iSichols    V.  Packard,  16  Vt   83;  sufficiency    of   innuendo    drawn,  see 

Brown  v.  Brown,  14  Me.  817;   Harris  Wachter  v.  Quenzer,  29  N.  Y.  647; 

V.  Burley,  8  N.   H.   256;   Linville    v.  Builer  v.  Wood,  10  How.  Pr.  222. 

Early  wine,  4  Blackf.  469;  Tappan  v.  '  Lvle  v.  Clason,  1  Cai.  581. 

Wilson,  7  Ohio,  190,  part  1.  *  Snyder  v.  Andrews,  6  Barb.  43. 

8  Sep  Blais<lell  v.  llavmond.  4  Abb.  "Perkins  v.  Mitchell,  31    Bwrb.  461. 

Pr.  41U;  Caldwell  v.  Raymond,  2  Id.  >"  LiUiejohn    v.  Greeley,    18  Abb. 

198.  Pr.  41. 


$   1696.  LIBEL  AND  SLANDER.  625 

of  the  keeper  of  an  intelligence  office  reflecting  on  the  business 
cajiacity  of  the  partners  of  a  mercantile  firm.^ 

§  1693.  Libelous  Intent  end  Meaning. — Where  a  com- 
plaint only  averred  a  libelous  intent  and  meaning  on  the  part 
of  the  defendant  in  the  composing  and  publishing  of  the  words, 
•without  averring  that  they  were  so  understood  by  those  to  whom 
they  were  published,  a  demurrer  on  the  complaint  on  the  ground 
that  the  written  and  published  words  set  forth  do  not  constitute 
a  libel,  should  be  sustained. ^ 

§  1694.  Special  Damage. — When  the  words  are  in  their 
natural  and  obvious  construction  injurious,  some  damage  is  to  be 
be  presumed,  and  it  is  not  essential  to  allege  special  damage  ;3 
but  when  the  court  can  discern  no  injurious  meaning  in  the  plain 
and  natural  purport  of  the  publication  itself,  the  plaintiff  must 
aver  and  prove  special  damage* 

§1695.  Of  and  cjnoerning  Plaintiff.— Although  induce- 
ment may  be  necessary  to  explain  the  matter  alleged  to  be  libel- 
ous, it  is  enough  to  state  in  the  declaration  that  the  publication 
was  *'of  and  concerning"  the  plaintiff.^  The  court  assumes  the 
words  complained  of  do  in  fact  refer  to  the  plaintiff.^  By  sec- 
tion 460,  California  code  civil  procedure,  the  averment  that  the 
same  was  published  concerning  the  plaintiff  supphes  the  place 
of  all  averments  of  extrinsic  facts  which  might  otherwise  be 
necessary  to  show  the  application  of  the  words  charged  to  the 
plaintiff.  This  averment  is  essential,  and  can  not  be  supplied  by 
an  innuendo. 

§  1695.  Reputation — Cliaracter. — Reputation  is  the  esti- 
mate in  which  an  individual  is  held  by  public  fame  in  the  place 
where  he  is  known  ;'^  and  it  is  not  necessary  to  prefix  the  word 
"  o;eneral."^  The  word  "  charncter  "  and  "  reputation,"  though 
often  used  synonymously,  are  in  fact  not  synonymous.®  "  Char- 
acter" is  a  teri£.  convertible  with  comm  n  report.^"  "General 
character"  is  the  estimation  in  which  a  person  is  held  in  the 
community  where  he  resides.^     It  is   the  result  of  general  con- 

J  Taylor  V.  Churoli,  4  Seld.  451  ;soe,  «  Wesley  v.  Bennett,   5  Abb.    Pr. 

further,  Towiisht-iid  i>n  Slan.  and  Lib.  498. 

«  Maynard  v.  F.  F.Ins.  Co.,  34  tal.  '  Cooper  v.  Greeley,  1  Den.  347, 

^        •  8  French  V.  Millard,  2  Ohio   St.  5a 

8  Perkins  v  Mitchell,  31  Barb.  4r)l ;  »  Bucklin  v.  The  State,  20  Ohio,  18; 

Hicks  V.  Walker,  2  G.Greene  (lowu),  French  v.    Millard,  2    Ohio   St.    50. 

440  That  they  are  the  same,  s^e  Kimmel 

«  Caldwell  v.  Raymond,  2  Abb.  Pr.  v.  Kimmel,  3  Serg.  &  R.  337. 

193;  Slone  V.    Cooper,  2   Den.    299;  ^  Id. 

Bennett  v.  Williamson,  4  Sandf   t>0,  "  See  Douglass  y.  Tousey,  2  Wend. 

*  Townshend   on    Sland.    and  Lib.  364. 
406. 

EsTEK,  Vol.  1—40 


•626  FORMS  OP  COMPLAINTS.  §   1697. 

duct  ^  *' Chaste  character"  means  actual  personal  virtue,  not 
actual  reputation. 2 

§  1697.  Words  with  a  Covsit  Meaning. — "Words  which 
•on  their  face  appear  to  be  entirely  harmless  maj'  under  certain 
circumstunces  convey  a  covert  meaning  wholly  different  from 
the  ordinary  and  natural  interpretation  usually  put  upon  them. 
To  render  such  words  actionable,  it  is  necessary  for  the  pleader 
'to  aver  that  the  author  of  the  libel  intended  them  to  be  under- 
stood, and  that  they  were  in  fact  understood  by  those  wlio  read 
them  in  their  covert  sen^e.^  And  when  a  hidden  defamatory 
meaning  is  sought  to  be  attributed  to  words  in  themselves  in- 
nocent, and  on  their  face  containing  no  such  sense,  by  extrinsic 
facts  outside  and  independent  of  the  publication  itself,  the 
knowledge  of  such  facts  must  be  shown  by  averment  to  have 
existed  in  the  breast  of  the  defendant  at  the  time  of  the  publi- 
•cation,^ 

§  169S.    Tlie  Sam 3 — B/  an  Attorney  at  Law. 

Foj-m  No.  4^4, 

[TiTLTt.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  plaintiff  was,  on  and  before  the day  of 

,  18...,  an  attorney  at  law  of  the  several   courts    of 

record  of  the  state  of ,  duly  admitted  as  such  to  prac- 
tice therein,  as  such  attorney,  and  had  practiced,  and  still  con- 
tinued to  practice  as  such  attorney  at  law,  in  the  several  courts 
of  record  in  said  state  of ,  and  had  always,  as  such  at- 
torney at  law,  conducted  and  demeaned  himself  with  honesty 
and  fidelity,  and  had  never  been  guilty,  or  suspected  to  have 
been  guilty,  of  any  misconduct  or  malpractice,  in  his  said 
capacity  and  profession  of  an  attorney  at  law. 

II.  That  on  the day  of  18....,  at ,  the 

defendant  published   in  a   newspaper  called  the ,  the 

following  words  concerning  the  said  plaintiff,  and  of  and  con- 
cerning him  in  his  said  capacity  and  profession  of  an  attorney 
at  law  [set  forth  the  words  used] . 

III.  That  defendant  meant  thereby  that  [state  innuendo]. 

IV.  That  said  publication  was  false  and  defamatory  and  by 
means  thereof  the  plaintiff   had  been  and  is  greatly  injured  and 

» Sharp  V.  Scogin,   Holt's  N.  P.  C.  Co.,   84  Cal.  48;   see    also    Rundell 

641 ;  3  Am.  Law  J.,  N.  S..  145,  v.   Butler,    7  Barb.  2fiO;    Wesley  v. 

*  CRrpenter  v.  The  People,  8  -Barb.  Bennett,  5  Abb.  Pr.  408 ;  and   Carroll 

603:Crozierv.  The   People,    1    Park.  v.  White,  33  Barb   6ia 
Cr.  453;  SaflFord  v.  The  People,  Id.        ♦Smith  v.  Ashley,   11    Met.  867; 

474.  Dexter  V.  iSpear,  4  Mason,  115. 

*Maynard  v.  Fireman's  Fund  Ins. 


§  1700.  LIBEL  AND  SLANDER.  627 

prejudice  in  his  reputation  aforesaid,  and  has  also  lost  and 
been  deprived  of  great  gains  and  profits,  which  would  other- 
wise have  arisen  and  accrued  to  him  in  his  said  profession 
and  business,  to  his  damage dollars. 

[DkMAND   of  JCDajIKNT.] 

§  1G99.    The  Sams — By  a  Physician. 

Form  No.  4S5, 
[Title.] 
fiie  pidintiff  complains,  an!  alleges: 

I.  That  at  the  time  hereinafter  mentioned  the  plaintiff  was  a 
physician,  practicing  as  such  at 

II.  That  on  the day  of ,18....,  the  defendant 

publi&hed  in  a  newspaper  called  the ,  the  following 

words  concerning  the  plaintiff  [set  forth  the  words  used]. 

III.  That  said  publication  was  false  and  defamatory,  and  by 
means  thereof  the  plaintiff  was  injured  in  his  reputation,  and 
in  his  said  good  name  and  credit  as  a  physician,  and  in  his 
practice  as  such,  to  his  damage  dollars. 

[Demand  of  Judgment.] 

§  1700.  For  Libel — Charge  of  Dishonesty,  etc.,  in  Busi- 
ness. 

Form  No.  4S6, 
[Title.] 

The  plaintiff  complains,  and  alleges : 

I.  That  at  the  times  hereinafter  mentioned,  the  plaintiff  was 
a  corporation  existing  by  or  under  the   laws  of  this  state,  was 

engaged  in  business  in  the  city  of ,  as   a  banker 

and  stock  broker. 

II.  That   the    business  of  this  plaintiff  as  a    has 

always  depended  largely  on  the  good  reputation  and  credit  oi 
this  plaintiff,  and  on  the  trust  reposed  in  it,  and  by  their  share- 
holders and  the  public,  in  consequence  thereof. 

III.  That  the  defendant  was,  at  the  times  hereinafter  men- 
tioned, the  publisher  and  proprietor  of  the  ,  a  news- 
paper published  in  the  city  of  

IV.  That  the  defendant,  well  knowing  the  premises,  did,  on 

the day  of   ,  18...,  compose  and  publish  in  said 

newspaper,  concerning  the  plaintiff,  and  concerning  the  prem- 
ises, the  false  and  defamatory  matter  following,  to  wit  [here 
insert  the  words  of  libel,  innuendoes,  etc.] 

V.  That  by   reason    of  the  premises,  the  plaintiff  has  been 

injured  in  its  reputation  and  credit,  to  its  damage 

dollars. 

[Demand  or  JxmoMENT.] 


628  FORMS  OF  COMPLAINTS.  §   1701, 

§  1701.  Corporations — Special  Dami^e. — IncoriJorated 
companies  established  for  the  y)iiriK)se  of  iransacting  business, 
e.  g.,  banks,  may  maintain  actions  for  libel,  the  same  as  in- 
diviiluals,  for  words  affecting  their  business  or  property,  and 
without  alleging  special  damages.^ 

§  1702.  For  Chax^Q  of  Ciime — Words  not  Libelous 
on  their  Face. 

Fo7-m  No.  427, 

[TlTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  hereinafter  mentioned,  the  [dwelling- 
house  of  the  defendant  had  been  burned  down,  and  .  was  sus- 
pected that  it  had  been  feloniously  set  on  fire. 

II.  That  on  the  d«y  of   18...,  at  , 

the   defendant   published   in  a   new=;paper  called  ,  the 

following  words  concerning  the  plaintiff:  "  One  A.  B.  kindled 
the  fire,  and  I  can  prove  it." 

III.  That  the  defendant  meant  thereby  that  the  plaintiff  had 
feloniously  set  fire  to  said  house. 

IV.  That  the  said  publication  was  false  and  defamatory. 

V.  That  plaintiff  hath  sustained  damage  by  reason  of  said 
false  and  defamatory  publication  in  the  sura  of dollars. 

[Demand  op  Judgmknt.] 

§  1703.  For  Accusing  Plaintiff  of  Perjury  in  his  An- 
swer to  a  Complaint. 

Form  No.  4S8. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  before  the  committing  of  the  grievances  hereinafter 
mentioned,  the  plaintiff  had  filed  his  answer  in  a  certain  action 
then  pending  against  him  in  the  superior  court  of  the  county  of 

,  state  of  ,  wherein  the  defendant  herein  was 

plaintiff  ;  and  which  said  answer  was  verified  by  this  plaintiff. 

II.  That  on  the    day  of  ,  18...,  at , 

the  defendant,  well  knowing  the  premises,  published  and  caused 

and  procured  to  be  published,  in  anewspaper  called  the , 

concerning  the  plaintiff  and  his  said  answer,  the  following  words 
[here  state  the  libelous  matter]  ;  and  in  a  certain  other  part  of 
the  said  libel,  the  following  words  [here  state  libelous  matter]. 

III.  That  said  publication  was  and  is  false  and  defamatory, 
and  by  reason  thereof  the  plaintiff  hath  sustained  damage  in 
the  sum  of  dollars. 

[Dbmand  op  Judgment.] 

I  Shoe  and  Leather  Bank  y.  Thompson,  23  How.  Fr.  253. 


§  1705.  LIBEL  AND  SLANDER.  629 

§  1704.  For  Com'ioiinga  Libel  not  Directly  Accusing 
the  Plaintiff  of  Perjury. 

Form  No.  429, 

[TlTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  Tljat  before  the  committing  of  the  grievances  by  the  de- 
fendant hereinafter  mentioned,  a  certain  action  had  been  pend- 
ing in   tlie  superior   court  of  the  county  of ,  state  of 

,  wherein  one  A.  B.   was  plaintiff   and  one  C.   D.   was 

defendant,  and  which  action  had  been  tlien  lately  tried  in  said 
court,  and  on  such  trial  the  plaintiff  herein  was  examined  on 
oath,  and  had  given  his  evidence  as  a  witness  in  behalf  of  the  said 
A.  B. 

II.  That  on  the day  of  ,  18....,  at ,  the 

defendant  published   in   a   newspaper   called  the   ,  the 

following  words  concerning  the  plaintiff  and  the  said  action, 
and  concerning  the  evidence  given  by  the  said  plaintiff  upon 
the  said  trial  as  such  witness,  that  is  to  sav:  "He"  (meaning 
the  plaintiff)  "  was  forsworn  on  the  trial  "  (meaning  the  said 
trial),  and  that  he,  the  said  plaintiff,  in  giving  his  evidence  as 
such  witness  on  said  trial,  had  comnaitled  willful  and  corrupt 
perjury. 

III.  That  said  publication  was  and  is  false  and  defamntory. 

IV.  That  by  reason  of  said  false  and  defamatory  publication 
the  plaintiff  hath  been  damaged  in   the  sum  of dollars. 

[Dkmand  of  Judgment.] 

§  1 70.5.  For  a  Libel  not  Directly  Accusing  the  Plaintiff 
of  Larceny. 

Form  No.  J^SO, 

[TlTLTt  ] 

The  plaintiff  complains,  and  alleges: 

I.  Tliat  before  the  committing  of  the  grievances  hereinafter 
jnentioned,  a  certain  horse  of  the  defendant  had  been  feloni- 
ously stolen  by  some  person  or  persons  [or  state  that  the  de- 
fenrlant  "was  possessed  of  a  horse,  and  had  asserted  that  his 
horse  had  been  feloniously  stolen,"  or  "it  had  been  asserted 
that  his  said  horse  had  been  feloniously  stolen  "]. 

II.  That  on  the day  of ,  18...,  at ,  the 

defendant,    well   knowing  the   premises,  published   in  a   news- 
paper, called  the    ,  the   following  words  concerning  the 

plaintiff:  "  He  is  the  person  who  took  my  horse  from  the  field." 

III.  That  the  defen  lant  meant  thereby  that  the  plaintiff  had 
feloniously  stolen  his  said  horse. 

rV.  That  the  said  publication  was  false  and  defamatory,  and 


630  FORMS  OP  COMPLAINTS.  §1706. 

by  reason   of  said  false  and  defamatory  publication  the  plaint.fl 

hath  sustained  damage  in  the  sum  of  dollars. 

[Demand  of  Judgment.] 

§  1706.    For  Libel  by  Signs. 

Form  No.  4SL 

[TlTLK.] 

The  plantitf  complains,  anl  alleges: 

I.  That  on  the day  of ,  18...,  at ,  the 

defendant,  contriving  to  injure  the  plaintiff  in  his  reputation,  and 
to  bring   him  into  public  contempt,  disgrace  and  ridicule,  did,  in 

the  public  street  of  said ,  wrongfully  and  maliciously 

make,  and  cause  to  be  made,  an  efflgy  or  figure  intended  to  rep- 
resent the  person  of  the  plaintiff,  and  hung  up  and  caused  to  be 
hung  up  the  said  &f^gy,  in  the  view  of  the  neighbors  of  the  plaint- 
iff and  of  the  public  then  and  there  assembled,  by  means  of  which 
the  plaintiff  has  been  greatly  injured  in  his  reputation,  to   his 

damage   dollars. 

[Demand  of  Jttdgmint.] 

§  1707.  For  Slander — The  Words  being  Actionable  in 
Themselves. 

Form  No.  4S2. 

[TiTLTC.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the  day  of ,    18...,  at  ,  the 

defendant  spoke,  in  the  hearing  of  A.  B.  [or  sundry   persons], 

of  and   concerning  the  plaintiff,  the  false  and  scandalous  words 

following  [he  is  a  thief],  to  the  damage  of  the  plaintiff 

dollars. 

[Demand  of  .Judgment.] 

§  1708.  Abatement  of  Action. — By  the  common  law,  ac- 
tions of  tort  die  with  the  person,  and  this  rule  applies  to  actions 
for  slander  and  libel,  except  in  those  states  where  a  different  rule 
is  prescribed  by  the  statute. ^ 

§1709.  Ambiguous  Words. — Where  words  are  ambiguous 
and  uncertain  in  their  meaning,  the  complaint  must  allege  such 
circumstances  as  will  show  that  ihey  were  uttered  wiih  a  slander- 
ous meaning. 3 

§  1710.  Averments  in  Complaint. — The  New  York  code 
has  changed  the  common-law  rule  of  pleading  in  actions  of 
slander  in   one  particular :    that  is,  although  it  may  be  uncertain 

*  A  cnrioftture  mav  be  libelousi:  See  v.  Dinehart,  5  Gush.  543,  544;  Wal- 
Viele  V.  Gray,  19  How.  Pr.  650;  10     ford  on  Parties,  1892,  1449. 

Abb    Pr.  1.  *  Pike  V.  Van  Wormor,  6  How.  Pr. 

*  Pownshend  on  Smnder  and  Libel,      171 ;  S.  C,  6  Id.  99. 
889;  see  1  W.  Sauud.  816;  Nuttleton 


§    1715.  LIBEL  AND  SLANDER.  631 

to  whom  the  words  were  intended  to  apply,  it  is  no  longer  neces- 
sary to  insert  in  the  complaint  any  averment  showing  they  were 
intended  to  apply  to  the  plaintiff.^  A  complaint  which  avers  that 
defendant  spoke  certain  words  of  and  concerning  the  plaintiff, 
and  setting  forth  the  words  which  appear  actionable  per  se,  suffi- 
ciently states  a  cause  of  action.  ^ 

§1711.  C'lastity.— Ordinarily,  and  in  the  absence  of  any 
statutory  provision,  words  published  orally  charging  a  woman 
with  want  of  chastity  are  not  objectionable  per  se.^  "Want  of  chas- 
lit}',  special  damage  being  averred,  as  to  unmarried  female,  is 
actionable  \*  also  as  against  a  man,^  or  a  married  woman.'  In 
California  the  common-law  rule  that  charging  a  want  of  chastity 
is  not  actionable  per  se,  has  been  changed  by  the  code,  whether 
the  words  are  spoken  of  a  man  or  woman.' 

§  1712.  Construction. — In  a  declaration  in  slander,  the 
words  laid  as  the  slanderous  charge  will  be  understood  by  the 
court  in  their  natural  and  popular  sense. ^ 

§  1713.  Cantinuaado. — In  complaint  for  slander  the  words 
spoken  should  not  be  alleged  with  a  continuando.  Slanderous 
words  spoken  at  one  time  constitute  one  cause  of  action.  The 
same  or  other  slanderous  words  spoken  at  other  times  constitute 
other  causes  of  action,  but  if  relied  on  they  should  be  separately 
pleaded,  in  separate  paragraphs.^ 

§  1714.  Coants  in  Complaint. — It  is  allowable  to  include 
in  the  same  declaration  divers  distinct  words  of  slander  of  differ- 
ent import  J'^  But  a  new  count  for  another  slander  can  not  be 
added  after  the  right  of  action  has  been  barred  by  the  statute  of 
of  limitations^^  Under  the  old  rule  the  plaintiff  was  held  to 
strict  proof  of  the  words  as  charged  in  the  declaration ;  and  to 
meet  this  rule  it  was  necessary  to  state  the  words  in  a  variety  of 
counts  adapted  to  the  evidence  relied  on.  ^ 

§  1715.  Damages. — In  an  action  for  slander,  where  words 
are  charged  to  have  been  spoken  of  and  concerning  a  plaintiff  as 
a  clerk  or  tradesman,  which  it  is  alleged  was  his  profession,  it  is 
unnecessary  to  allege  special  damages. ^^ 

'  Pike  V.  V  an  Wormer,  6  How.  Pr.  99.  *  Tuttle  v.  Bishop,  80  Conn.  89. 

*  Malone  V.  Slilwell,    16   Abb.    Pr.  *  Swinncv  v.  Nave,  22  Iiid.  178. 
421.  i»Uh11  v.'Nees,  27  III.  411. 

*  Townsheiid  on  Slander  and  Libel,  ^'  Smith  v.  Smith,  45  Peim.  St.  403. 
176  el  seq.  ^*  SeeOliii-tead  v.  ^Miller,  1   Wend. 

*  Fuller  V.  Fenner,  16  BarK  833,  506;  Aklri.  h  v.  Brown.  11  Id.  596; 
»  Tetwiiliyerv.  Wands,  17  N.  Y.  54.  Ke.iiholiz  v.  Becker,  3  Den.  346;  Fox 
«  Wilson    V.    Guit,    17  N.  Y.  412;      v.  V:iiiderbeek,  5  Cow.  513;  Howard 

Oltii^te«d  V.  BiH.wi).  12  Hnrb.  667;  v.  S  xto-,,  4  N.  Y.  157;  Kundell  v. 
Klein  V.  H.'i,t7..  2  Duer,  633.  Biiti-r,  7  B  irh.  260. 

»  C»l.  (Jiv.  Code,  sec  4tt.  "  Butler  v.  Howes,  7  Cal.  87. 


682  FOEMS  OF  COMPLAINTS.  §   17 IG. 

§  1716.  Disease. — With  respect  to  the  charge  of  having  a 
disease,  it  is  actionable  to  charge  having  certain  diseases,  but 
it  has  been  held  not  actionable  to  charge  one  with  having  had 
such  diseases.^  Thus,  that  a  married  woman  has  (in  the  pres- 
ent tense)  a  venereal  disease  \^  that  a  man  has  a  venereal  dis- 
ease. ^ 

§  1717.  Entire  Conversation. — A  count  of  a  petition  in  an 
action  for  slander,  which  sets  out  the  entire  conversation  in 
which  the  slander  was  spoken,  contains  only  one  cause  of 
action,  although  the  conversation  consists  of  several  parts,  each 
of  which  is  actionable.'*  A  complaint  in  an  action  for  slander 
which  states  that  the  words  contained  therein  are  those  which 
the  defendant  spoke  concerning  the  plaintiff  is  good,  although 
the  style  of  such  words  is  unusual  for  a  conversation.^ 

§  1718.  Essential  Averments. — In  an  action  for  slander 
it  should  be  alleged  that  the  defendant  spoke  the  words  in  the 
presence  and  hearing  of  divers  persons.  To  allege  a  speaking 
merely  is  not  sufficient.*  But  in  Indiana,  by  statute,  it  is  suffi- 
cient merely  to  allege  the  speaking.'  Or  it  is  sufficient  to  allege, 
*'  in  the  hearing  of  certain  persons,"  naming  them  ;8  or  of  certain 
persons  named,  and  divers  others,  not  naming  the  others.^ 

§  1719.  Husband  and  Wife.— By  the  statute  of  New  York 
of  1860  and  1862,  a  married  woman  may  sue  alone  and  without 
tier  husband  for  slander  or  libel ;  and  so  in  Pennsylvania. i"  But 
a  wife  cannot  sue  her  husband  for  slander  ;^^  but  if  there  be 
no  statutory  provision  to  govern  such  actions,  the  action  should 
be  brought  in  the  name  of  both  husband  and  wife.^^  And  if  the 
husband  dies,  the  action  survives  to  the  wife ;  but  if  the  wife 
dies  before  verdict,  the  action  abates. ^^  jf  the  words  concern- 
ing a  married  woman  are  actionable  because  of  special  damage 
to  the  husband,  the  husband  must  sue  alone, ^^  even  if  the  hus- 
band and  wife  live  apart  under  a  deed  of  separation.^*    So  for  a 

^Townshend    on    Sland.  and   Lib.  '*  Freethy  v.  Freethy,  42  Barb.  641 ; 

184.  Tibbs  v.  Brown,  2  Ciraiii's  Chs.  (Peuii.) 

«  Williams  v.  Holdredge.   22  Barb.  89. 

896.  "  Stark,  on  Sland.  849 ;    Newton  v. 

•Hewitt  v.  Mason,    24   How.    Pr.  Rnwe,   8  Sc.   L.   K   2();  Dprisrate  v. 

866.  Gai  diner,  4  Mee.  &  VV.  5;  Sjivre.  33; 

*  Cracraft  v.  Cocbran,  16  Iowa,  801.  Baldwin  v.  Flower,  8  Mod.  120 ;   Long 
8  Hull  V.  Vreeland,  42  Barb.  543.  v.  Lonp,  4  Barr,  29. 

«  Style,  70;  Stark.  Slan.  SiiO.  '3  12  Serg.  &  K.  76;  see  Style,   138. 

'  Guard  V.  Risk,  11  Ind.  156.  "  Saville   v.    Sweeney,   4    Barn    & 

«  Hurbank  v.  H->rn,  39  Me.  233.  A<iol.  514;  Long  v.  Lon-j,  4  IJarr,  29; 

•  Bradshaw  v.  Perdue,  12  Ga.  510;  Siark.  on.  Slan.  351 ;  Fort.  377;  1  Lov. 
"Ware  v.  Cartledge,  24  Ala.  622.  140:  Klein  v.  Hnntz  2  Uuer,  683. 

w  Kangler  v.  Hummell,  37Penn.St.  ^^  Beacb  v.  Ranney,  2  Ilill,  b09;  s^e 

luO{  see  also  N.  Y.  Code,  sec.  450.  Towusheud  on  Slau.  and  Lib.  890. 


§  1724.  LIBEL  AND  SLANDER.  633 

charge  of  joint  larceny,  the  husband  should  sue  alone.*  Where 
the  language  published  concerns  both  husband  and  wife,  the  hus- 
band may  sue  alone  for  the  injury  to  him,  and  the  husband  and 
wife  may  sue  jointly  for  the  injury  to  the  wife.^  For  a  publica- 
tion by  a  married  woman,  the  action  must  be  against  her  and  her 
husband. 3 

§  1720.  Joinder  of  Actions. — A  cause  of  action  against  the 
husband  for  the  wrongful  act  of  his  wife  can  not  be  joined  with 
a  oauae  of  action  against  him  for  his  own  wrongful  act.  Thus, 
where  the  complaint  in  an  action  against  husband  wife 
stated  a  cause  of  action  for  slanderous  words  of  the  wife,  and  a 
further  cause  of  action  for  slanderous  words  of  the  husband, 
it  was  held  that  the  two  causes  of  action  were  improperly 
joined.* 

§  1721.  Jurisdiction. — The  court  has  jurisdiction  in  an  ac- 
tion of  slander,  although  the  slanderous  words  were  spoken  in 
another  state. ^ 

§  1722.  Language  in  Part  Slanderous. — Where  the  com- 
plaint sets  out  language  used  on  a  single  occasion,  a  part  of 
which  is  slanderous  and  the  rest  is  not,  the  latter  portion  will 
not  be  stricken  out  as  irrelevant.  Though  it  may  not  be  nec- 
essary to  allege  in  the  complaint  all  that  was  said  at  the  time,  it 
is  proper  to  do  so.^  Plaintiff  was  not  bound,  however,  to  prove 
all  the  woid:^  charged.  If  he  proved  some  of  them,  and  those 
proved  were  actionable,  it  was  enough.'  And  different  sets  of 
words  importing  the  same  charge,  and  laid  as  spoken  at  the  same 
time,  miglit  under  the  former  practice  be  included  in  the  same 
count.8  If  any  of  the  words  are  actionable  judgment  must  be 
for  the  plaintiff.' 

§  1723.  Of  or  concerning  Plaintiff. — It  is  sufficient  to  aver 
substantially  that  the  words  were  spoken  of  plaintiff.  An  express 
averment  of  the  fact  is  not  necessary.^" 

§1724.     Place  and  Time. — The  place"  or  time  of  speaking 

1  20  Penn.  159.  »  Rathbun  v.  Emijih,  6  Wend.  407; 

»  Id.  Milligan  v.  Thorn,  Id.  412. 

»  6  Cnr.  &  P.  4S4 ;  2  Wils.  227 ;  Stvle,  »  Edds  v.   Waiers,  4  Cranch  C.  Ct. 

849:  2  W.  8aund.  117.                     "  170. 

*  Maloiie  V.  Stiiwell,  15  Abb.  Pr.  "  Brown  v.  Lamberton,  2  Binn.  34; 
421.  Brashen  v.  Shepherd,  Kv.  D^c  249; 

*  Hull  v.  Vreeland,  42  Barb.  Nestle  v.  Van  SIvek,  2  Hill,  28J;  but 
54.3.  see  Titus  v.  FollH,  Id.  318;    T\ler  v. 

«  Dpvo  v.  TJrundage,  13    How.  Pr.  Tillotson,  Id.  50-<;  Cave  v.  Slidor,  2 

221  ;  Rootv.  Lowndes,  6  Hill,  518.  Munf.  193;Harperv.  Deip.  3  It.d.225; 

T  l.ooniis   V.  Swick,  8   Wend.  205;  Rex  v.  Marsden,  4  Mmu.  «&  Sel.   164; 

Purple  V.  Horton,  13  Id.  9;  comjtiire,  Baldwin  v.  Hildrelh,  14  Gray  (Mass.), 

also,    Diovl  V.   Tanner,    20   Id.    190;  221. 

Geuet  V.  Milcbell.  7  Johns.  120.  "  Jefferiesv.Duucombe,ll  East,  226. 


634  FORMS  OF  COMPLAINTS.  §  1725. 

the  words^  are  not  material ;  but  it  must  be  prior  to  the  com- 
mencement of  the  action.^ 

§  1725.  Presence  and  Hearing,  Allegation  of. — The 
words  used  must  be  alleged  as  having  been  spoken  of  and  con- 
cerning the  plaintiff,  in  the  presence  and  hearing  of  some  per- 
son or  persons.^  Biit  the  plaintiff  may  amend  on  the  trial,  if  de- 
fendant is  not  misled.*  It  is  a  sufficient  allegation  in  a  complaint 
in  an  action  for  slander,  to  show  that  the  words  were  spoken  in 
the  presence  and  hearing  of  some  person  or  persons ;  tew  state 
that  in  certain  conversations  or  discussions  defendant  did  pub- 
lish, declare,  etc.,  as  these  words  sufficiently  imply  the  presence 
of  hearers,  and  indicate  that  the  declarations  were  public  and 
notorious.' 

§  1726.  Presumption  of  Malice. — ^Where  the  occasion 
upon  which  the  words  for  which  an  action  of  slander  is  brought 
were  spoken  repels  any  presumption  of  malice,  and  proof  of  it 
is  necessary  to  maintain  the  action,  it  is  sufficient  to  aver  that 
they  were  spoken  maliciously,  without  setting  forth  in  the  com- 
plaint the  facts  and  circumstances  which  show  tiie  existence  of 
malice.* 

§  1727.  Published. — "  Published  '*  ex  vi  termini^  imports  a 
speaking  in  the  presence  of  a  third  party.'  And  this  aver- 
ment is  sufficient,  without  averring  specially  in  the  presence  of 
others.®  That  the  words  were  spoken  would  be  sufficient,  if 
accompanied  by  an  averment  implying  publication  to  a  third 
person.^ 

§  1728.  Several  Liability. — As  a  general  rule,  an  action 
of  slander  will  not  lie  against  two  persons,  as  every  speaker 
must  be  sued  separately,^"  although  it  seems  that  where  the 
words  are  alleged  to  have  been  uttered  in  pursuance  of  a  con- 
spiracy between  two  or  more  defendants,  the  action  may  be 
maintained. ^1 

§  1729.  Slander  Defined.— Slander  is  the  imputation: 
1.  Of  some  temporal  offense,  for  which  the  party  may  be  in- 
dicted and  punished  in  the  temporal  courts ;  2.  Of  an  existing 
contagious  disorder,  tending  to  exclude  the  party  from  society; 
8.  Of  an  unfitness  to  perform  an  office  or  employment  of  profit, 

>  22  Barb.  87.  *  DuM    v.  Agan,  1     Code    K  184. 

•  Tavlor  V.  tiurgingger,  2  Rep.  Con,  •Burton  v.  Burton,  3  Iowa,  316. 
Ot.  3r,7.  "  Tnylor  v.  How,  Cro.  E  iz.  Klil. 

•Aiionvmoua,    8    How.   Pr.     406;  i»  Malone  v.  Stilwell,  15  Abb.  Pr. 

Wood  V.  Gilchrist,  1  Oode  R.  117.  421 . 

«Id.  "Ch.   PI.  74;  Bull.  N.  P.  5;  For- 

»  Hurd  V.  Moore.  2  Or.  85.  eylh  v.  Edmiston,  2  Abb.  Pr.  4iia 

•  Viele  V.  Gray,  10  Abb.  Pr.  1. 


§  1732.  LIBEL  AND  SLANDER.  635 

or  want  of  integrity  in  an  office  of  honor;  4.  Words  prejudic- 
ing a  person  in  his  lucrative  profession  or  trade;  5.  Any  untrue 
words  occasioning  actual  damage  ;^  slander  being  an  unwritten 
or  unprinted  libel.^  It  is  also  defined  to  be  "  the  publishing 
of  words  in  writing  or  by  speaking,  by  reason  of  which  the  per- 
son to  whom  they  relate  becomes  liable  to  suffor  some  cor[)oral 
punishment  or  to  sustain  some  damage."^  Slander  is  a  private 
wrong  or  tort,  cognizable  by  the  common  law,  the  remedy  for 
which  is  a  civil  action,  formerly  known  as  an  "  action  on  the 
case  for  words,"  and  now  as  "  an  action,  or  the  action  of  or  for 
slander."* 

§  1730.  Special  Damages. — The  loss  which  ens.ies  as  a 
necessary  conseiiuence  is  termed  damage ;  the  loss  which  en- 
sues as  a  natural  and  proximate  consequence  is  termed  special 
damages.^  Special  damages  consist  in  the  loss  of  marriage,  loss 
of  consortium  of  husband  and  wife,  loss  of  emoluments,  profits, 
customers,  employment,  or  gratuitous  hospitality,  or  by  being 
subjected  to  any  other  inconvenience  or  annoyance  occasioning 
or  involving  a  pecuniary  loss.^  Mere  apprehension  of  loss  is 
not  such  special  damage  as  will  maintain  an  action.'  Mental 
distress,  physical  illness,  and  inability  to  labor,  occasioned  by 
the  aspersion  of  words  not  in  themselves  actionable,  are  no 
grounds  for  special  damages.^ 

§  1731.  Special  Damag-Js  must  be  AU'i'gecl. — Special 
damages,  or  those  damages  which  are  not  the  necessary  conse- 
quence of  the  language  complained  of,  must  be  specially  alleged 
in  the  cora[)laint.^  A  pecuniary  loss  must  be  shown  to  entitle 
the  plaintiff  to  a  remedy.^"  Tlie  objections  that  allegations  of 
special  damage — e.  g.,  in  an  action  for  slander — are  not  suffi- 
ciently specific,  can  not  be  raised  by  demurrer,  but  only  by 
motion  to  make  more  specific. ^^ 

§  1732.  Sabocquent  UsagD. — In  slander,  allegations  of  a 
subsequent  usage  of  the  words  complained  of  are  inadmissible. 
A    repetition     may   be   proved   without    such   allegation.  ^^     If 

>  1  Billiard  on  Torts,  c.  7,  p.  33.  Wands,  17  N.  Y.  54 ;  Wilson  v.  Goit, 

«  Id.  32.  Id.  442. 

•  liac.  Abr.  *  Townshend  on  Slander  and  Libel, 

*  Tuwushend  on  Slander  and  Libel,  4"28.  citing  various  authuntifs. 

22.  J"  Beach    v.     Kanney,    2    Hill,  369; 

6rd.l48.  Herrick  v.  Lapham,  'lO  .J.>hn<    -J-Sl ; 

6  1,1.  227.  Hallock  V.  Miller,  2  Barl).  6o0;    Hersh 

T  M.  230;  Terwillisrer  v.  Wands,  17  v.  liingwalt,  3  V  eates,  508. 

N.  Y.  54;  Wilson  V.  Goit,  Id.  442.  "Hewitt   v.   Mason,  24    How.     Pr. 

8  I  he  case  of  Bradt  v.  Towsk-y,  13  '6W. 

We  id.  253;  and  Fuller  v.  Fenii.-r,  16  ^  Gray  v.Nellis,  6  How.  Pr.  290. 
Baro.  333 ;    overruled,  Terwilliger  v. 


^36  FORMS  OF  COMPLAINTS.  §    1733. 

after  a  recovery  has  been  had  in  an  action  for  slander  or  libel, 
special  damage  occurs,  no  action  can  be  maintained  therefor. 
The  first  recovery  is  a  bar  to  any  subsequent  action.^  Ordi- 
narily, the  repetition  of  language  by  another  than  the  first  pub- 
lisher is  not  a  natural  consequence  of  the  first  publication,  and 
therefore,  except  in  certain  cases,  the  loss  resulting  from  such 
repetition  does  not  constitute  special  damage.''* 

§  1733.  Specific  Words. — The  specific  words  in  which  slan- 
der is  conveyed  must  be  set  forth  in  the  petition  in  an  action 
of  slander ;  and  it  is  not  sufllcient  to  state  the  effect  of  the  words 
merely,  or  to  allege  that  the  defendant  charged  the  plaintiff 
with  a  particular  crime.  ^ 

§  1734.  Fox  Slander — Words  Spoken  in  a  Foreign  Lan- 
guage. 

Form  No.  4S3. 
[Titlk] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the  day  of ,  18...,  at ., 

the  defendant,  in  the  presence  and  hearing  of  divers  persons 
who  understood  the  [German]  language,  spoke  concerning  the 
plaintiff  the  following  words  in  the  said  [German]  l:inL»uage 
[here  set  forth  the  words  in  the  German  or  foreign  laiiguai:e]  ; 
and  which  said  words  signified,  and  were  understood  to  mean, 
in  the  F^nglish  language  [here  set  forth  a  correct  translation  of 
the  words  in  English]  ;  and  the  said  [German]  words  wire  so 
understood  by  the  said  persons  in  whose  presence  and  hearing 
they  were  spoken. 

II.  That  the  defendant  meant  thereby  [set  forth  innuendo], 

III.  That  the  said  publication  was  false  and  defamatory. 

IV.  That  in  consequence  [state  special  damage]. " 

V.  Tliat  by  reason  of  the  speaking  and  publication  of  the 
said  false  and  defamatory  words  the  plaintiff  hath  been  injured 
in  his  reputation,  to  his  damage dollars.  [If  special  in- 
jury as  to  business  is  alleged,  add,  after  the  word  "  reputation,** 
the  words  "  a..d  business."] 

[D  KM  AND   OF  JUDGMKNT.] 

§  1735.  Foreign  Language. — Where  the  slanderous  words 
were  spoken  in  a  foreign  tongue,  they  should  be  set  out  in  the 
complaint  in  the  original  language,  accompanied  by  an  averment 
of  their  meaning  in  English,  and  it  ^hould   also  be  alleged   that 

J  Tt'WiisViend  on  SlHtifler  and   Libel,        *  Townshend  on  Sender  and  Libel, 
231  ;  C'<»(.k('  Dclaiii.  24 ;  t'lUler  v.  Veal,     2-  8 
Cas.  K.  B.  642.  8  Taylor  v.  Moran,  4  Met.  (Ky.)  127. 


§  1737.  LIBEL  AND  SLANDER.  637 

the  persons  present  understood  the  language  userl.^  The  com- 
plaint is,  h'wever,  amendable  in  this  respect  upon  terras.'  In 
the  case  of  foreign  words,  it  mast  be  alleged  that  the  persons 
present  understood  them.^  But  in  Ohio  it  is  held  where  words 
are  spoken  in  German,  in  a  German  country,  it  will  be  presumed 
that  ihcy  were  understood.'* 

§  l7o6.  For  Slander— The  Words  not  being  Actiona- 
ble in  Themselves. 

Form  No.  434- 
[Titlb] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at ,  the 

defendant  said  to  one  C.  D.,  concerning  the  plaintiff  ["  He  is  a 
young  man  of  remarkably  easy  conscience. "J 

II.  That  the  plaintiff  was  then  seeking  employment  as  a  pri- 
vate secretary  of  said  C.  D.,  and  tliat  the  defendant  meant  by 
said  words  that  the  plaintiff  was  not  trustworthy  as  a  private 
secretary. 

III.  That  the  said  words  were  false. 

IV.  That  in  consequence  of  the  said  words  [the  said  C.  D. 
refused  to  employ  the  plaintiff  as  private  secretary],  to  his 
damage  dollars. 

[Demand  op  Judgmknt.] 

§  1737.  Innuendo. — Where  the  words  themselves  are  am- 
biguous, an-l  do  not  necessarily  impute  a  crime,  the  innuendo 
can  not  enlarge  the  meaning  of  the  words  spoken  beyond  the 
averment  of  the  intention  by  which  the  speaking  of  the  words 
is  introduced. 5  It  may  be  averred  that  the  defendant,  by  means 
of  the  words,  insinuated  and  meant  to  be  understood  by  the 
hearers  as  charging  the  plaintiff  with  the  crime  imputed.^  But 
if  the  words  are  unambiguous,  such  averment  is  unnecessary."' 
And  where  the  innuendo  extends  the  meaning,  the  excess  in 
meaning  may  be  disregarded,^ 

•Keenholts  v.  Becker,  8  Den.  346;  6')8;  Tvler  v.  Tillotson.  2  Hill,  507; 

Wormouth  V.  Cramer,  3  Wend.  394;  Buller  "v.  Wood,  10  How.   Pr,  222; 

Lettman  V.  Ritz,  3Sandf. 734;  Amaim  Tillotson  v.  Cheatham,  3  Johns.  56; 

V.  Damm,  8  0.  B.  (N.  S.)  597.  Van  Vechten  v.  Hopkins,  5  Id.  211 ; 

»  Lettman  v.  Ritz,  3  Sandf.  734.  Lindsey  v.  Smith,  7  id.  359;  Vaughan 

•Wormouth   v.  Cramer,  8   Wend.  v.  Havens,  8  Id.  109;  Fry  v.   Bennett, 

894;  Stark.   Slan.  860;  Zeig  v.  Ort,  3  5  Sandf.  54;  Andrews  v.  Woodman- 

Chand.  Wise.  26;  Amann  v.  Damm,  see,  15  Wend.  232;  Cornelius  v.  Vaa 

8  Com.  B.  (N.  S.)  597.  Slyck,  21  Id.  70;  Croswell  v.  Weed, 

«  Bechtel  v.  Shatler,  Wright,  107.  25  Id.  621. 

»  Weed  V.  Bibbins,  35  Barb.   315;  •  Rundell  v.  Butler,  7  Barb.  260. 

and  see  Fry  v.  Bennett,  5  Sandf.  54.  »  Walrath  v.  Nellis,  17  How.  Pr.  72. 

As  to  the  office  of  the  innuendo   as  ■  Carroll  v.    White,  33  Barb.   616; 

employed  prior  to  the  code,  consult  Weed  v.  Bibbins,  32  Id.  316. 
Mutt  V.  Comstucl^  7  Cow.  654;   id. 


688  FORMS  OF  COMPLAINTS.  §  1738. 

§  1738.  Tenor,  Import,  and  Effect. — It  is  bad  pleading  to 
aver  In  the  comi)laint  that  defendant  uttered  "  certain  false 
and  defamatory  words  and  statements,  of  tlie  following  tenor 
and  import,  and  to  the  following  effect;  that  is  to  say,"  etc., 
though  an  allegation  of  their  "  substance  "  might  be  sufficient.^ 

§  1739.  What  Words  are  Actionable. — Although  words 
spoken  of  a  party  do  not  necessarily  import  anything  injurious 
in  themselves,  yet  they  may  when  taken  in  connection  with 
other  charges  made  against  the  party  at  the  same  time.  The 
whole  being  spoken  of  the  party  as  a  merchant,  and  with  in- 
tent to  affect  his  credit,  have  a  very  different  meaning  from 
their  ordinary  one,  and  so  taken  may  sustain  an  action.* 

§  1740.  Words  of  Disgrace. — Mere  words  of  disgrace,  un- 
less written  and  published,  are  not  actionable.^ 

§  1741.  Words  not  per  se  Slanderous. — In  actions  of 
slander  for  words  not  in  themselves  actionable,  the  right  to 
recover  depends  upon  the  question  whether  they  caused  special 
damage,  and  the  special  damage  must  be  f  iflly  and  accurately 
stated.* 

§  1742.    For  Slander  Respecting  Plaintiff  's  Trade. 

Form  No.  435. 
[Titlk] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  of  the  commission  of  the  grievances  here- 
inafter mentioned,  the  plaintiff  was  engaged  in  business  as  mer- 
chant [or  as  the  case  maybe],  and  had  always  maintained  a 
good  reputation  and  credit  as  such  [merchant]. 

II.  That  on  the  day  of ,  18...,  the  defend- 
ant, in  the  presence  and  hearing  of  a  number  of  persons,  ma- 
liciously, and  with  intent  to  cause  it  to  be  believed  that  the 
plaintiff  kept  false  and  fraudulent  books  of  account  in  his  said 
business,  ijublishcd  the  following  words  concerning  this  plaint- 
iff, and  concerning  his  said  business:  "He  keeps  false  accounts, 
and  I  can  prove  it"  [or  state  the  words  complained  of]. 

III.  That  the  said  words  were  false. 

IV.  That  in  consequence  of  said  words,  a  number  of  persons, 
and  in  particular  [name  the  persons  referred  to] ,  who  had  there- 

*  Forsyth  v.  Edmiston,  2  Abb.  Pr.  'Johnson    v.  Brown,  ^    Cranch  0. 

430;    Mnilland  v.   Goldnev,   2    Enst,  Ct.  235. 

426;  Cook  v.  Cox,  3  Mau.  "&  Sel.  110.  ♦  Linden  v.  Graham,   1  Duer,  672; 

As  to  the  former    rules  of  pleading  Hailock  v.  Miller,  2  Barb.  630;  Evans 

and  evidence    in   actions  of  slander,  v.  Harries,  1  Hurlst  &  N.  261;  Hart- 

Rnd    their    operation,  see    Bisbey    v.  ley  v.  Herring.  8  T.  R.  loO;  Harrison 

Shaw.  2  Kern.  67.  v.  Pearce,  P.  &  F.  667. 

"Beardsley  v.  Tappan,  1  Blatch.588. 


S  1749.  LIBEL  AND  SLANDER.  639 

tofore  been  accustomed  to  deal  with  the  plaintiff  in  his  busi- 
ness aforesaid,  ceased  to  deal  with  him,  and  the  plaintiff  was 
thereby  deprived  of  tlieir  custom,  and  of  the  profits  which  he 
would  otherwise  have  made  by  a  continuance  of  such  dealing, 
and  was  otlierwise  injured  in  his  reputation,  to  his  damage 
dollars. 

[DbMAVD  or  JUDGMBNT.] 

§  1743.  Clerk  or  Tradesman. — In  an  action  for  slander, 
where  words  are  charged  to  have  been  spoken  of  and  concern- 
ing a  defendant,  as  a  clerk  or  tradesman,  which,  it  is  alleged, 
was   his  profession,  it  is  unnecessary  to  allege  special  damage.^ 

§  1744.  Dishonesty. — Imputations  charging  dishonesty 
against  an  individual  in  connection  with  his  business  are  slan- 
derous per  se.^ 

§  1745.  Ignorance  and  Want  of  Skill, — Imputations  of 
gross  ignorance  and  want  of  skill  in  his  profession,  as  against 
a  physician,  are  libelous. ^ 

§  1716.  Insolvency. — An  imputation  of  insolvency  against 
a  petty  trader  is  actionable.^ 

§  1747.  Mechanical  Trade. — "Words  imputing  to  a  me- 
chanic want  of  skill  or  knowledge  in  his  craft,  are  actionable, 
per  se,  if  they  are  clearly  shown  to  have  been  spoken  with  refer- 
ence to  the  plaintiff's  occupation,  and  the  employment  is  one 
requiring  peculiar  knowledge  and  skill. ^ 

§  1748.  Piiysiclan. — Where  words  are  actionable  only  be- 
cause spoken  of  the  plaintiff  in  his  business  or  profession, 
averments  by  way  of  inducement  and  colloquium  should  be 
inserted.  If  a  physician  brings  an  action  for  the  speaking  of 
words  which  are  disgraceful  to  him  in  his  profession,  he  must 
aver  in  hts  complaint  that  he  was  a  practicing  phj'sician  at  the 
time  the  words  were  uttered,  and  that  they  were  spoken  of  and 
concerning  him  in  his  profession;  otherwise   it  is   demurrable. 

§  1749.  Special  Da-nig33. — In  an  action  for  slander  for 
words  spoken  of  the  plaintiff  in  his  trade  or  business,  with  a 
general  allegation  of  loss  of  business,  the  jury  may  assess  dam- 
ages for  a  general  loss  or  decrease  of  trade.  As  a  general  rule, 
the  customers  <jO  lost  should  be  named.'    The  loss  of  a  customer 

>  Bntlpr  V.  Howes,  7  C:il.  87.  •  Carroll  v.  White,  83  Barb.  615. 

•Kowlesv.  Bowen,  30  N.  Y.  20.  ■»  Mavne  on   DnmH<:es,  278,  317;  2 

»  Secor  V.  Harris.    18    Barb.    425;  Phill.  £v.248;  Feise  v.  Linder.  3  Bos. 

Cain.ll  V.  White.  83Id.  615.  &  Pul.  372;    Tobias    v.  Harland,    4 

•  Cnrpenierv.  Dennis,  3  Sandf.  805.  Wend.  537;   Hallock    V.    Miller,    2 

»  FiizirtTHld   V.    Redfipld,   61  Barb.  Barb.  630. 
484 ;  S.  C,  30  How.  Pr.  97. 


640  FORMS  OF  COMPLAINTS.  §   1750. 

is  special  damage,  although  if  the  dealing  had  taken  place  the 
plaintiff  would  have  lost  by  it.^ 
§  1750.     Special  Averment — Discharge  from  Employ. 

Form  No.  4S6. 

That  by  reason,  etc.,  one  A.  B.,  who  had  theretofore  retained 

plaintiff  in  the  capacity  of ,  for  ,  afterwards, 

on  ,  discharged  the  plaintiff  from  his  employ. 

§  1751.     Special  Averment — Refusal  to  Deal. 

,  Form  No.  4S7. 

That  by  reason  of  the  committing  of  the  said  grievances  by 
the  defendant,  E.   F.,  G.  H.    [etc.,   who  had  theretofore  dealt 

with  the   plaintiff  in  his   trade  of   a   ,  by  him  then  and 

since  carried  on],  afterwards  declined  to  have  any  dealings  with 
the  plaintiff. 

§  1752.    Special  Averment — Refusal  to  Employ. 

Form  No.  438. 

That  by  reason  of  said  slander,  one  E.  F.,  who  before  was 
about  to  employ,  and  would  have  employed  the  plaintiff  as  his 
servant  for  certain  wages,  afterwards,  and  before  the  commence- 
ment of  this  suit,  refused  to  employ  the  plaintiff  in  his  service ; 
and  the  plaintiff  from  thence  remained  out  of  employment  for 
months. 

§  1753.  Special  Averment — Refusal  to  Retain  in  Em- 
ploy. 

Form  No.  459. 

That  by  reason  [etc.],  one ,  who  otherwise 

would  have  retained  the  plaintiff  in  the  capacity  of , 

in  his  business  of ,  for  wages,  afterwards  declined  so 

to  do;  whereby  the  plaintiff  lost  [etc.],  which  would  otherwise 
have  accrued  to  him  [etc.] 

§  1754.    Special  Averment— Refusal  to  Sell. 

Form  No.  440. 

That  by  reason  [etc.],  one  A.  B.,  who  would  otherwise  have 
sold  to  the  plaintiff  certain  goods,  to  wit  [mention  goods] ,  on 
credit,  afterwards  refused  so  to  do;  whereby,  etc. 

§  1755.    For  Slander — Charging  a  Criminal  0£feuse. 

Form  No,  44i' 
[Title.] 

The  plaintiff  complains,  and  alleges: 

»  Storey  v.  Challands,  8  Car.  &  P.  281  ;  Olmsteadv.  Miller,  1  Wend.  506; 

234.     For   cases   on    the    subject   of  Sewall  v.  Catlin,  3  Id.  291 ;    Williams 

averring  special  damages  in    actions  v.  Hall,  19  Id.  305;    Shipmanv.  Bur- 

of  slandnr,  see   Hallock  v.  Miller,  2  rows,  1  Hall,  399;  Harcourt  v.   Har- 

Barb.  6^0;    Keeiiholts  v.  Becker,    3  rison.  Id.  474.    For  averment  of  spe- 

Deni.>,  :'46;  Beach  v.  Kan ncy,  2  Hill,  cial  damagps,  see  Turner  v.  Foxhall, 

309 ;   Henick  v,  Laphara,   10  Johns.  2  Cranch  C.  Ct.  324. 


§   1757.  LIBEL  AND  SLANDER.  C41 

I.  That  at  the  time  of  the  commission  of  the  grievances  here- 
inafter mentioned,  the  plaintiff  sustained  a  good  name  and 
character  among  his  neighbors  and  acquaintances,  for  moral 
worth  and  integrity,  and  was  never  suspected  of  the  crime  of 
forgery. 

II.  That  on  the  day  of  ,  18..,  the  defend- 
ant, in  the  presence  and  hearing  of  a  number  of  persons,  spoke 
the  following  words  concerning   the  plaintiff:   "He  is  a  forger." 

III.  That  the  said  words  were  false. 

IV.  That  in  consequence  of  the  said  speaking  of  said  words 
the  plaintiff  has  been  greatly  injured  in  his  good  name  and 
reputation,  to  his  damage  dollars. 

[Dkmand  of  Judgment.] 

§  1756.  Actionable  L':in2uags. — AVhen  language  imputes 
a  charge  which,  if  true,  will  subject  the  party  charged  to  an  in- 
dictment for  a  crime  involving  moral  turpitude,  or  subject  him 
to  an  infamous  punishment,  it  is  actionable  per  se.^  And  this 
rule  has  been  followed  in  most  of  the  states.'  In  some  of  the 
states,  it  seems  that  all  oral  language  which  imputes  an  indict- 
able offense,  or  an  offense  punishable  at  law,  is  actionable  per  se;^ 
Or  an  indictable  offense.''  While  in  some  otlier  states,  to  be 
actionable  they  must  impute  not  only  an  indictable  offense,  but 
such  for  whicli  corporal  pr.nishmcnt  may  be  inflicted  as  the  im- 
mediate penally. 5  Words  which  impute  trespass,  assau't,  bat- 
tery, and  the  like  are  not  actionable  per  s«,  and  yet  those 
offenses  are  punishable  by  in'lictmont.^ 

§  1757.  Words  Subjecting  Plaintiff  to  Criminal  Prose- 
cution.— Words  imputing  to  plaintiff  an  act  subjecting  him  to 
a  criminal  prosecution,  must  als')  impute  moral  turpitude,  or 
something  infamous  or  disgraceful,  detracting  from  the  character 
of  the  offender  as  a  man  of  good  morals.' 

1  Townshend  on  Slander  and  Libel,  Wine.  7  Vt.  400;  1  Am.  Lead.  Cas. 

1-2.  113. '8d  ed. 

•  See  Brook^r  v.  CoflBn,  5  Johns.  188 ;  *  Poe  v.  Grever,  3  Sneed.  666 :  Dun- 

Youiig  V.  .Miller,  3   Hill,  2:!;  see  also  nell  v.  Fiske,  11   Melc.  551  :  Elgerly 

Wright  V.  Paii,'e,  36  Barb.  438;   Van  v.  Swain,  32   N.    H.   481;  Teaney  ▼. 

Ness  V.  HimiltoM,  19  Johns.  367:  9  Clement,  10  M.  67. 

Wend.  141;  23  Conn.  58.5;  Andre-*  v.  ♦Kinney  v.  Hosea,  3  Harr.  77. 

Koppenbeafrr.  SSers:.  &  R.  2o5;Todd  »  liirch     v.    Benton,     26  Mo.     153; 

V.  Ronsib,  10  Id.  1«;  MoCuen  v.  Lud-  Billings  v.  Wing,  7  Vt.  439. 

lum.  2" Harrison  (N.  J.).  12;  Johnson  «  Smith  v.     Smith,  2    Sneed,  478; 

y.    Shields,!    Dulcher,   116;  Gago  v.  Dudley  v.  Horn,  21  Ala.  879;   Billings 

Shelton,  8   Rich.  242,  S.   C.    L.  R. ;  v.  Wing,  7  Vt.  4.39;  see  note  49. 

Kinney  v.  Hoswi,  8  Harr.  (Dfl.)  77;  ^  Quinn  v.  O'Gara,  2  E.  D.  Smith, 

Johnston  v.  Morrow,  9  Porter  (Ala.),  388;  Pike  v.  Van  Wormer,  5  How.  Pr. 

624;  Tavlor  V.    Kneeland,     1    D.nig.  171  ;  Dias  v.  Short,  16  Id.  322;   Weed 

(Mich.)  67 ;  21    Penn.  622 ;  Billings  v.  v.  Bibbiiis,  32  Barb.  316. 
EsTEK,  Vol.  I — 41. 


642  FORMS  OF  COMPLA.TNTS.  §   17o8. 

§  1758.  For  Slander— Words  Directly  Charging  a 
Crimiiial  Oifense— Several  Causes  of  Action. 

Form  No.  44^. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,18..,  at ,  the 

•defendant,  in  a  certain  discourse  which  he  had  with  one  A.  B., 
in  the  presence  and  hearing  of  divers  persons,  spoke  the  follow- 
ing words  concerning  the  plaintiff  [set  forth  the  words]. 

II.  That  on    the day   of »18.,,   at , 

the  defendant,  in  a  certain  other  discourse  which  he  then  had  in 
the  presence  and  hearing  of  divers  other  persons,  spoke  concern- 
ing the  plaintiff  the  following  other  words  [set  forth  the  words]. 

HI.  That  all  said  words  were  false  and  defamatory. 

IV.  Tiiat  in  consequence  of  the  said  speaking  of  said  words, 

etc. 

[Demand  op  Jcdgmbnt.] 

§  1759.  Words  Charging  Offenses. — "Words  charging  a 
burning  amounting  to  arson,  whether  by  common  law  or  by  stat- 
ute, are  actionable.  So  of  a  general  charge  of  forgery.  So  of 
a  general  charge  of  being  a  murderer.  So  of  a  general  charge  of 
being  a  thief.  So  of  a  charge  of  larceny,  or  a  taking  animofu- 
randi  the  personal  property  of  another.  Or  imputations  charg- 
ing a  person  with  being  a  receiver  of  stolen  goods. ^  So  of  a  direct 
charge  of  perjury.''  So  of  an  imputation  of  willful  perjury  in  a 
suit  pending. 3 

i  17G0.  Slander— For  Words  Directly  Charging  Per- 
jury. 

Form  No.  44S, 

{TiTLK.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the  day  of ,  18...,  at ,  the 

defendant,  in  a  certain  discourse  which  he  then  had  concerning 
the  plaintiff,  in  the  presence  and  hearing  of  divers  persons,  spoke 
and  published  concerning  the  plaintiff  the  words  following;  "  You 
perjured  yourself." 

II.  That  said  words  were  false. 

III.  That  in  consequence  of  the  said  words  the  plaintiff  is 
greatly  injured  in  his  good  name  and  reputation,  and  has  been 

»  Dias  V.  Short,  16  How.  Pr.  822.  «  See  Townshf-nd  on  Slan.  and  Lib. 

As  to  the  imputation  of  stealing  goods,  IfiS  et  seq.,  and  the  cases  there  cited; 

■when  and   where  not  slanderous  per  Wilhur   v.  Ostrom,  1   Abb.  Pr.   (N. 

»e,  and  to  what  extent,  see  Coleman  v.  B.)  275. 

Playsted.  8t)Barb.26;Maybeev.FLk,  »  Walrath  v.  Nellist.  17How.  Pr.72; 

42  id.  82(5.  Baker  v.  Williams,  12  Burb.  527. 


§  1763.  LIBEL  AND  SLANDER.  643 

rendered  liable  to  prosecution  for  perjury,  to  his  damage 

dollars. 

[Dkmand  or  Judgment.] 

§  1 761.  Construction  of  Words. — In  an  action  for  slander, 
in  charging  the  plaintiff  with  perjury,  if  it  appears  that  the 
words  used  to  express  the  charge  are  such,  in  the  sense  in  which 
they  would  naturally  be  understood,  as  to  convey  to  the  minds 
of  those  to  whom  they  are  addressed  the  impression  that  the 
plaintiff  had  committed  perjury,  and  that  the  defendant  intended 
to  be  so  understood  by  those  who  heard  him,  such  words  will  of 
themselves  warrant  a  verdict  for  the  plaintiff,  in  case  the  jury 
find  that  they  were  uttered  with  the  intention  above  stated,  and 
were  so  understood ;  and  it  is  not  necessary  to  give  additional 
evidence  that  the  suit  was  in  a  court  of  competent  jurisdiction, 
or  tliatthe  plaintiff  swore  falsely,  with  a  corrupt  intent.^ 

§  1762.  Perjury  in  Another  State. — In  a  declaration  for 
slander,  in  charging  the  plaintiff  with  perjury  in  another  state, 
it  must  be  averred  that  by  the  laws  of  such  other  state,  perjury 
is  an  offense  to  which  is  annexed  an  infamous  punishment.^ 

§  1763.  Slander— For  Words  Ciiarging  Perjury  and 
Containing  Special  Inducements. 

I  Form  No.  444* 

\       [Tttlb] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,   at ".. ,  a 

certain  action  was  pending  before  A.  B.,  a  justice  of  the  peace 

in  and  for  the  county  of  ,  wherein  C.  D.  was  plaintiff 

and  E.  F.  was  defendant,  and  in  which  suit  the  plaintiff  was 
duly  sworn  before  the  said  justice,  and  gave  his  evidence  as  a 
witness,  on  the  trial  of  said  action,  and  testified  that  he  *'  did 
not  know  that  one  M.  had  run  away;"  the  fact  whether  the  said 
M.  had  run  away  or  not  being  material  in  said  action. 

II.  That  on  the  day  of ,  18...,  at ,  the 

defendant,  in  a  discourse  which  he  had  in  the  presence  and 
hearing  of  sundry  persons,  spoke  and  published  of  and  con- 
cerning the  plaintiff,  and  concerning  the  said  trial  and  testi- 
mony of  the  plaintiff  as  a  witness  in  relation  to  said  M.,  the 
false  and  scandalous  words  following:     ''He  swore  to  a  lie  at 

,  in  the  suit  between  C.  D.  and  E.  F. ;  he  said  he  did 

not  know  that  M.  bad  run  away,  and  it  was  a  lie  for  he  did 

>  Korn  V.  Towsley,  51  Barb.  885.  sponsibih'tyof  the  defendant,  see  Wil- 

•  Sparrow  v.  Maynard,  8  Jones  L.  bur  v.   Ustrum,   1  Abb.  i'r.  (N.  S.) 

(N.  C.)195.    A9toihechapp:eofral!»o  276. 

swearing,  and  the  extent  of  the  re- 


€44  FORMS  OF  COMPLAmrS.  §   1764. 

fcnoT^rit;"  meaning  that  the  plaintiff,  at  the  trial  of  the  action 
aforesaid,  had,  as  a  witness,  sworu  falsely,  aud  committed  will- 
ful and  corrupt  perjury. 

in.  That  in  consequence  of  said  speaking  of  said  words,  etc., 
[as  in  preceding  form]. 

[Djemakd  of  Judgment.] 


CHAPTER  IV. 

MALICIOUS  PiiOSEUUTIGN. 

§  1764.    Common  Form. 

Form  No.  445. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at ,  the 

defendant   obtained   a  warrant  for   the  arrest   of  this    plaintiff 

from [a  police  justice  of  the  said  city,  or  as  the  case 

may  be],  on  a   charge  of ,  and  the  plaintiff  was  arrested 

thereon,  and   imprisoned  for  days    [or  hours],  and  gave 

bail  in  the  sum  of dollars  to  obtain  his  release. 

II.  That  in  so  doing  the  defendant  acted  maliciously  and 
and  without  probable  cause. 

III.  That  on  the day  of ,  18...,  the  said  justice 

dismissed  the   complaint   of   the   defendant,    and  acquitted   the 

plaintiff  [or,  thp  grand  jury  of  the  county  of ignored 

the   bill   against  the  plaintiff,    or  otherwise  show   a  termination 
favorable  to  him] . 

IV.  That  many  persons,  whose  names  are  unknown  to  the 
plaintiff,  hearing  of  the  said  arrest,  and  supposing  the  i)laintifl 
to  be  a  criminal,  have  ceased  to  do  business  with  him  [or  that  in 
consequence  of  the  said  arrest,  the  plaintiff  lost  his  situation  as 
clerk  to  one  A.  B.],  and  has  been  otherwise  injured  in  his  good 
name  and  reputation,  and  whereby  and  by  means  whereof  he 
hath  sustained  damage  in  the  sum  of dollars. 

[Demand  or  Judgment.] 

§  1765.  Causes  of  Action  not  Assignable. — Causes  of 
action  arising  out  of  personal  torts  which  do  not  survive  to  the 
personal  representatives  of  a  party,  are  not  assignable.^  So  a 
cause  of  action  for  a  malicious  prosecution  is  not  assignable.' 

1  Zftbriskie  v.  Smith,  8  Kern.  822 ;    CrI.   19 ;  Co.negys  v.  Vasse,   1    Pet. 
86  Barb.  270 ;  Hoyt  v.   Thompson,  1     193. 
Seld.    847 ;   Boyd  v.  Blankman,    29        « Lawrence  y.  Martin,  22  CaL  173. 


§  1769.  MALICIOUS  PROSECUTION.  645 

'  §  1766.  Conspiracy. — When  two  or  more  persons  are  sued 
for  a  joint  wrong  done,  it  may  be  necessary  to  prove  a  previous 
combination  between  them  in  order  to  secure  a  joint  recovery ; 
but  it  is  not  necessary  to  aver  tliis  previous  combination  in  the 
complaint,  and  if  averred,  it  is  not  to  be  considered  as  of  the 
gist  of  the  action.^  An  allegation  that  the  defendants  have 
fraudulently  confederated  and  conspired  together  for  the  pur- 
pose of  harassing  the  plaintiff,  by  prosecuting  separate  suits 
against  him  for  the  same  cause,  and  that  such  suits  have  been 
commenced  and  are  prosecuted  in  pursuance  of  such  con- 
spiracy, is  not  suffl -ient  to  sustain  an  action  or  uphold  an  in- 
junction, when  the  defendants  claim  adversely  to  each  other, 
as  well  as  to  the  plaintiff,  and  no  direct  fraud  is  charged ;  the 
plaintiff,  merely  averring  his  belief  of  such  conspiracy,  because 
the  defen  'ants  have  brought  separate  actions  for  the  same  cause, 
and  by  the  same  attorney.  Fraud  in  such  a  case  is  not  to  be 
presumed;  and  the  conspiracy  should  be  distinctly  averred. ^ 
I  §  1767.  Conspiraoy,  Avsrments  in  Action  of. — In  an 
action  for  a  conspiracy  the  rule  is  to  allow  a  great  latitude  in 
settini:  out  in  the  cmplaintthe  particular  acts  from  which  the 
conspiracy  is  to  be  inferred,  even  so  far  as  to  allow  the  individ- 
ual acts  of  the  conspirators  to  be  averred. ^  So  far  as  the  allega- 
tions of  such  acts  are  scand  dons,  tliey  slioul  1  be  stricken  out, 
unless  they  appear  to  relate  to  the  foundation  of  the  plaintiff's 
action.^ 

§  1768.  Conviction. — The  fact  that  the  plaintiff  was  con- 
victed by  a  jury  is  conclusive;  and  if  apparent  in  tlie  complaint 
will  be  fatal  to  the  suit  for  damages. ^  Nor  will  a  reversal  for 
eiTor  of  law  prevent  the  application  of  the  rule.  The  only  ex- 
ception is  when  fraud  in  obtaining  a  conviction,  by  means  which 
prevented  the  plaintiff  from  setting  up  his  defense,  is  set  up 
and  proved.  In  a  complaint  of  tliis  nature,  an  averment  of 
matter  tending  to  show  the  defendant's  motive  was  held  not  to 
be  irrelevant.^  Nor  do^s  suffering  default  have  this  effect  where 
probable  cause  existed  at  the  first.' 

§  1769.  03rpora':io  1. — Ai  action  for  malicious  prosecution 
will  lie  against  a  corporation  if  it  has  power  to  authorize  the  act 
dune,  and  has  done  so.^ 

»  ITerron  v.  HiK^hog.  25  GW.  5')0.  i  Gordon  v.  Uphatn,  4  E.  D.  Smith, 

'     »  \I   Kriiuvv.  U^zml.  4>  liirb.  t>')7.  9. 

»  .Ma-.siua"y.  Clark,  18  Aub.  Pr.  1S3.  »  Vance     v.    Erie     Rvilwav   Co.,  8 

4  11.  Vpi><iin,  H34.  See  Assiiilt  and  B^itiTy. 

»  Millar  V.  Doere,  2   ^hVi.  Pr.  1.  Thut  a    corporation  is  not  liable    to 

•  iJr.ickleinan  v.   Brandt,  10  Abb.  su -h  an  arlion.   but   mav  be  su-d   in 

Pr.  141.  tru&pass  tor  false  impriduument,  see 


646  FORMS  OF  COMPLAINTS.  §  1770. 

§  1770.  Damages. — The  jury  are  the  proper  judges  of  the 
.  amount  of  damages  to  be  allowed  in  actions  for  malicious  prose- 
cution.* Evidence  of  tlie  general  bad  reputation  of  the  plaintiff 
is  admissible  in  reduction  of  damages.^ 

§  1771.  D3fecti'7e  Complaint —In  an  action  for  malicious 
issuing  and  prosecution  of  a  writ  of  attachment,  a  defect,  if  any, 
in  the  complaint,  is  not  alleging  that  it  was  issued  without 
probable  cause,  and  stating  instead  that  it  was  issued  out  of 
wantonness,  is  cured  by  verdict  when  the  defect  was  not  pointed 
out.  3 

§  1772.  Essential  Averments. — ^In  an  action  for  malicious 
prosecution  the  plaintiff  must  aver  and  must  prove  an  entire  want 
of  probable  cause  of  the  accusation,  and  actual  malice  of  the 
defendant  in  preferring  it;  that  is,  malice  in  fact,  as  distinguished 
from  malice  in  law.*  Both  malice  and  want  of  probable  cause  are 
essential,  and  must  be  stated  and  proved ;  also,  that  the  prosecu- 
tion is  at  an  end,  and  how  it  was  concluded. ^  An  averment  that 
the  prosecution  was  without  probable  cause  is  indispensable,  and 
its  omission  fatal,^  the  want  of  probable  cause  being  the  primary 
question  in  such  actions.'''  For,  though  malicious,  the  defendant 
is  not  liable  unless  there  be  a  want  of  probable  cause. ^  The 
necessity  of  the  concurrence  of  all  three  of  the  above  elements, 
i.  e.,  want  of  probable  cause,  malice  in  fact,  and  actual  deter- 
mination in  favor  of  the  plaintiff,  is  maintained  in  numerous 
cases.^ 

§  1773.  Facts  Only  must  be  Alleged. — In  an  action  for 
malicious  prosecution,  only  the  substantial  matter  constituting 
the  action — that  is,  facts,  and  not  the  evidence  of  facts — need  be 
set  out.*^  The  point  of  inquiry  in  such  an  action  is  whether  there 
was  in  fact  probable  cause  for  the  prosecution,  and  not  whether 
the  defendant  had  probable  cause  to  believe  there  was.** 

§  1774.  Gist  of  Action. — The  action  lies  against  several  de- 
fendants, and  the  gist  of  the  action  is  the  malicious  prosecution.*' 

Owlslov  V.  Montgomery  R.  R.  Co.,  87  *  Grant  v.  Moore,  29  Cal.  644. 

Ala.  5(j0.  •  Pavson    v.   Caswell,    9    Sheplev, 

1  (Jliapman  V.  Dodd,  10  Minn.  850.  212;   Wood  v.    Weir,  5B.  M..n.  644; 

>  Fitzijibbon  v.  Brown,  43  M«.  1(39;  Leidigv.  Rnwson,  1  Scam.  272. 

see  also  VVlnte  v.  Tucker,  It)  Ohio  tit.  »  Vunderbilt  v.  Mathis,  5  Uuer,  304; 

468.  spe   also   as    to    pleHdins;,    Da^is    v. 

»  Lpvevv.  Fargo,  1  Nev.  415,  L'lough,  8   N.  H.  157;   Weinl>e''ger  v. 

*  Biilkelpv  V.  Smith.  2  Dner,  261;  Shelly,  6  Walts  &  Serg.  336;  H<>rton 
BosBoti  V.  Southard,  6  Seld.  2:!6.  v.    Smeltz-'r,  5  Blackf.  428;  Cole   v. 

6  Brown  V.  Chadspj',  39  Barb.  253;  Hanks.  3  .Mon.  20S;  see  also  Richard- 
Hull  V.  Vreelnnd,  42  Id.  543;  S.  C,  sun  v.  Virtue,  2  Hun,  208. 
18  Abb.  Pr.  182;  McKuwn  v.  Hunter,         "  Dr^ux  v.  Domec.  18  CmI.  83. 
80  N.  Y  625.  »'  Hickman  v.  Griffin.  6  Mo.  ,37. 

*  Luhrfink  V.  Still,  10  Md.  530.  » l>reux  v.  Oomec,  18  Cal.  83. 


§   1779.  MALICIOUS  PROSECUTION.  647 

§  1775.  ladebtsdness. — The  averment  of  no  indeH  due's 
may  be  omitted,  and  a  suit  maintained  for  maliciously  buiug  out 
an  attachment.^ 

§  1776.  Joint  Agency,  Allegation  of. — In  a  suit  against 
three  defendants  for  malicious  prosecution,  the  complaint  averred 
that  "  defen  laiits,  contriving  and  maliciously  intending  to  injure 
the  plaintiff,"  etc.,  falsely,  maliciously,  and  without  probable 
cause,  procured  him  to  be  indicted  for  murder,  it  was  held  that 
the  complaint  sufficiently  avers  a  joint  agency  on  the  part  of 
defendants  in  instituting  the  prosecution. ^ 

§  1777.  Malice. — Malice  and  falsehood  are  essential  ingre- 
dients in  an  action  for  malicious  prosecution.^  Malice,  as  well 
as  want  of  probable  cause,  is  Hecessary  to  sustain  an  action  for 
malicious  prosecution.*  Malice,  in  its  legal  sense,  means  a  wrong- 
ful act,  done  intentionally,  without  just  cause  or  excuse. ^ 
Malice  can  not  be  presumed  in  a  prosecution  where  the  defend- 
ant has  ineurrei  all  the  moral  guilt  of  the  charge,  although  he 
may  have  evaded  the  penalty  of  the  law.^  Malice,  like  fraud, 
is  to  be  inferred  from  facts  and  circumstances.''^  A  petition 
which  omits  to  state  that  the  prosecution  was  malicious,  and 
that  the  plaintiff  was  acquitted,  is  insufficient. ^  Public  policy 
and  security  require  that  prosecutors  should  be  protected  by 
the  law  from  civil  liabilities,  except  in  those  cases  where  the 
two  elements  of  malice  in  the  prosecutor  and  want  of  probable 
cause  for  the  prosecution  both  occur.^  If  one  person  arrests 
another  for  the  commission  of  a  crime,  under  the  belief  that  the 
person  arrested  has  committed  the  crime,  the  person  making 
the  arrest  can  not  be  said  to  act  maliciously,  although  he  may  act 
unlawfully. '" 

§  1778.  Motive. — In  an  action  for  malicious  prosecution, 
the  c  -mplaint  may  aver  matter  tending  to  show  the  defe  idant's 
motive;  e.  g.,  a  malicious  publication  by  him  procured  to  be 
made  concerning  the  prosecutor  —  such  as  would  be  proper  to 
prove  at  tlie  trial  as  showing  special  injury.  Such  averments 
should  not  be  stricken  out  on  motion,  as  the  plaintiff  can  not  be 
deemed  agj^rieved  by  them.^^ 

§  1779.  P.obabla  Cau33. — Probable  cause  mav  be  defined 
as  a  suspicion,  founded  upon   circumstances  sufficiently   strong 

*  Tomlinson  v.Warnfir,  9  Ohio,  103.  •  Sears  v.  HHthawnr.  12  Cal.  277. 
«  Dreux  v.  Dnmeo,  18  Cal.  ^3.  ^  I.von  v.  HMncck",  35  Cal.  376. 
«  PIhU  V,  Nil(»s,  1  Adm.  2:^0.                       *  Mooney  v.  Kennett,  19  Mo.  6«>1. 

♦  Rinev  v.  VHiil;uidinghatn,  9  Mo.         •  Potter  V.  Scale,  8  Cal.  217. 
8^7 :  Piissell  V.  Relfe.  Id.  849.  "  I-yon  v.  Hanoocls.  85  '  mI.  .^7-». 

»  Mnyiiard  v.  F.  Fund  Ins.  Co.,  34  ''  Miocklemau  v.  Braiidt,  10  .d.bb. 
Cal.  48.  Pr.  141. 


648  FOKMS  OF  COMPLMNTS.  S  1780. 

to  warrant  a  reasonable  man  in  the  belief  that  the  charge  is 
true.^  It  is  a  reasonable  ground  for  suspicion,  supported  by 
circumstances  sufficiently  strong  in  themselves  to  warrant  a 
cautious  man  in  the  belief  that  the  person  accused  is  guilty  of 
the  offense  charged.^  The  question  of  probable  cause  does  not 
depend  upon  whether  an  offense  has  been  committed,  nor 
upon  the  guilt  or  innocence  of  the  accused,  but  upon  the  pros- 
ecutor's belief  of  the  truth  of  the  charge  made  by  him.  If 
circumstances  are  shown  sufficient  to  warrant  a  cautious  man 
in  the  belief  of  the  truth  of  the  charge  he  makes,  it  is  enough.^ 
And  from  the  want  of  probable  cause,  malice  may  be  inferred,* 
and  is  a  mixed  question  of  law  and  fact.^  It  is  a  question  for 
the  court,  but  the  jury  must  decide  upon  the  facts. ^ 

§  1780.  Probable  Cause,  when  it  Exists.— If  the  defend- 
ant had  a  cause  of  action  in  the  case  alleged,  although  for  a 
much  less  amount  than  claimed,  there  was  probable  cause,  and 
the  court  should  grant  a  nonsuit.'  So  a  judgment  against  the 
plaintiff  after  trial  on  the  merits  is  sufficient  evidence  of  prob- 
able cause,  though  subsequently  reversed;  not,  however,  con- 
clusive, if  impeached  for  fraud. ^  Where  two  actions  have  been 
abandoned,  by  the  plaintiff's  failure  to  appear  at  the  adjourned 
day,  and  a  new  action  has  been  commenced  before  another 
justice  for  the  same  demand,  which  is  still  pending,  the  litiga- 
tion is  not  terminated,  and  want  of  probable  cause  can  not  be 
inferred  solely  from  the  discontinuance  of  the  former  suits. ^  A 
committal  to  await  the  action  of  the  grand  jury  is  no  conclu- 
sive evidence  of  probable  cause.^" 

§  1781.  Privileged  Charges. — As  to  the  remedy  by  action 
for  malicious  prosecution,  for  false  and  malicious  charges  pre- 
ferred in  legal  proceedings  and  deemed  piivileged  from  an 
action  for  defamation,  see  the  case  cited  in  the  note.i^ 

§  1782.  Special  Damages. — Expenses  of  counsel,  made 
necessary  by  a  malicious  prosecution,  are  to  be  specially  al- 
leged.12 

§  1783.    What  must  be  Shown. — To  sustain  an  action  for 

»  Potter  V.  Seale,  8  Cal.  217 ;  Hall  *  Grant  v.  Moore,  29  Gal.  644. 

X.  Hrtwkins,  5  Humph.  357;  Faris  v.  'Id. 

Starke,  3  B.  Mon.  4;  Pavson  v.  Gas-  •  Brant  v.  Hi^jrins,  10  Mo.  728. 

well,   9   Shepley,    212;    McLellan    v.  ■»  Urant  r.  Moore,  29  Gal.  644. 

Cumberland  Bank,  11  Id.  566 ;  4  Dana,  ^  Palmer  v.  Avery,  41  Barb.  290. 

120.  '  Id. 

2  Rnfs  V.  Innis,  35  Til.  4S7.  "  Haupt  v.  Pohlman,  16   Abb.  Pr. 

sscnnlan  v.  Gowley,  2    Hilt.  480;  801. 

f*>e  also  Foote  v.  Milbier,  4'i  How.  Pr.  "  Pprkins  v.  Mitchpll.  31  Bnrb.  46!. 

88:  Farnam  v.  Feolpv,  56  N.  Y.  451;  "Strang  v.  Whitehead,  12    Wend. 

Carl  V.  Ayers,  53  Id.l4.  64. 


§  1786.  MALICIOUS  PROSECUTION.  649 

malicious  prosecution,  the  plaintiff  must  show  affirmatively  that 
the  prosecution  was  malicious,  and  without  probable  cause,  both 
concurri  g.^ 

§  1784.  When  Action  will  Lie. — An  action  for  a  malici- 
ous prosecution  will  lie  where  an  affidavit  for  a  search  warrant 
is  made  before  a  justice,  maliciously,  and  without  probable 
cause,  although  the  magistr-ite  refuse  to  issue  the  warrant.^ 

§  17H5.  When  Action  will  not  Lie. — Such  an  action 
does  not  lie  where  the  alleged  malicious  suit  was  founded  on  a 
just  claim,  although  such  claim  was  smaller  than  that  for  which 
the  suit  was  brought,  when  it  does  not  appear  that  property 
■was  attached  to  a  greater  value  than  the  amount  of  such  claim.' 

§  1786.    The  Same— Fuller  Form. 

Form  No.  446. 

[TlTLE.J 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of  ,  18...,  at ,the 

defendant  appeared  before  ,  a  justice  of  the  peace  of 

said  county  [or  the  police  ju"'ge  of  said  city],  and  charged  the 
plaintiff,  before  said  justice,  with   having  feloniously   stolen    a 

certain ,  of  the  defendant;  and  procured  said  justice 

to  giant  a  warrant  for  the  arrest  of  the  plaintiff  upon  said  charge. 

II.  That  in  so  doing,  the  defendant  acted  maliciously  and 
without  probable  cause. 

III.  That  the  said  justice  issued  said  warrant  accordingly,  and 
the  plaintiff  was  arrested  and  imprisoned   under   the  same  for 

[days  or  hours,  and  gave  bail  in  the  sum  of 

dollars  to  obtain  his  release]. 

IV.  That  on  the  ....  day  of ,  18...,  the  plaintiff  was 

examined  before  the  said  justice  for  the  said  supposed  crime, 
and  the  said  justice  adjudjjed  him  not  guilt}',  and  fully  acquitted 
him  of  the  same ;  and  that  since  that  time  the  defendant  hai 
not  further  prosecuted  said  complaint,  but  has  abandoned  the 
same. 

V.  That  the  said  charge  and  the  arrest  of  the  plaintiff  there- 
under were  extensively  published  in   several  public  newspapers, 

among  others  the ,  as  the  plaintiff  believes,  through 

the  procurement  of  the  defendant. 

VI.  That  by  means  of  the  premises  the  plaintiff  was  injured 
in  his  person,  and  prevented  from  attending  to  his  business, 
and  paid dollars  costs,  counsel  fees  in  defending  him- 

»  Cook  V.  Walker,  80G«.519.  «  Millerv.  Brown,  3  Mo.  127. 

s  tiiaut  V.  Moore,  29  Cal.  (344. 


650  FORMS  OF  COMPLAINTS.  §   1787. 

self,  and in  obtaining  bail;  and  he  lost  his  situation 

as  servant  of ;  and  many  persons,  whose  names  are 

unknown  to  the  plaintiff,  hearing  of  the  said  arrest,  refused  to 
employ  him,  and  whereby  also  he  has  been  injured  in  his  good 

name  and  reputation,  to  his  dama^re dollars. 

[Demand  of  Judgment.] 

§  1787.    For  Procuring  Plaintiff  to  be  Indicted. 

Form  No.  447* 
[Title] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at  ,  the 

defendant  caused  and  procured  the  said  plaintiff  to  be  indicted 
by  the  grand  jury,  then  and  there  impaneled   and  sworn  by  the 

court,  in  and  for  the  county  of  ,  to  inquire  of 

crimes  within  and  for  the  said  county,  and  prosecuted  and  caused 
to  be  prosecuted  the  said  indictment  against  the  said  plaintiff. 

II.  That  in  so  doing,  the  defendant  acted  maliciously  and  with- 
out pi'obable  cause. 

III.  That  afterwards,  to  wit,  at  the  term  of  the  said 

court,  begun  and  held  on  the day  of , 

18...,  at  the  court-house  in ,  in  the  said  county  of 

,  the  said  plaintiff  was  in  due  manner  and  by  due 

course  of  law  acquitted  of  the  said  premises  in  the  said  indict- 
ment charged  upon  him,  by  a  jury  of  the  said  county  of , 

whereupon  it  was  then  and  there  adjudged  by  the  said  court 
that  the  said  plaintiff  go  hence  thereof  without  day,  and  the 
said  plaintiff  was  then  and  there  discharged  of  and  from  the 
premises  in  said  indictment  specified,  as  by  the  record  and  pro- 
ceeding thereof  remaining  in  said  court  api^ears. 

IV.  [State  special  damages.] 

[Demand  of  Judgment.] 

§  1788.    The    Same— For   Obtaining     Indictment     on 
Which  a  Nolle  Piosequi  was  Afterwards  Entered. 

Form  No.  44S. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at ,  the 

defendant  procured  C.  D.,  then  the  district  attorney  in  and  for 

the  county  of ,  in  this  state,  to  issue  subpoenas  for  the 

purpose   of  compelling   and  procuring  the  attendance   of   wit- 

*  For  the  law  on  this  subject,  seel  Fcolt,    21    Wend.  281;   Willinms   v. 

Sauiid.  228;   Punell  v.  MaciiHmara,  9  Himler,   3    Hawks,    645;     JL>emiis  v 

East,  361;  1  T.  11.  493;    Anderson  v.  Ryan,  t3  Barb.  145. 
Buchanan,  Wright,  725;     Morris  v. 


§   1788.  MALICIOUS  PROSECUTION.  651 

nesses,  among  others,  one  A.  B.,  at  the court  hold  on 

the  dny  last  mentioned  at ,  in  said  county,  before  the 

grand  jury  and  persons  serving  as  grand  jurors  at  such  term  of 

the court,  for  the  purpose  of   procuring  an  in<lictraent 

to  be  found  against  the  plaintiff,  as  hereinafter  more  fully 
stated. 

II.  That  in  so  doing  the  defendant  acted  maliciously  and 
"witliout  probable  cause,  and  intended  thereby  to  injure  the 
plaintiff  in  his  good  name  and  credit,  and  to  bring  him  into 
public  disgrace,  and  to  cause  bim  to  be  imprisoned,  and  to  im- 
poverisli  and  injure  him. 

III.  That  the  defendant  at  said  term  of  the  court, 

complained  of  the  plaintiff  before  the  grand  jury,  and  falsely 
and  maliciously,  and  without  any  reasonable  or  probable  cause 
whatsoever,  charged  the  plaintiff  to  the  grand  jury  with  having 
[state  charge  preferred]. 

IV.  That  said  charge  was  and  is  wholly  false  and  untrue, 
which  the  defendant  then  and  at  all  times  since  well  knew. 

V.  That  defendant  falsel^'^  and  maliciously,  and  without  prob- 
able cause,  procured  the  gran  1  jury  aforesaid  to  find  and  pre- 
sent to   the  said  court   an  indictment   against  the 

plaintiff  for  said  alleged  [state  pretended  charge]. 

VI.  That  the  defendant  falsely  and  maliciously,  and  without 
probable   cause,   procured    a   bench   warrant,    directed   to    the 

sheriff  or  any  constable  of  the  said  county  of ,  for  the 

arrest  of  the  plaintiff  upon  the  aforesaid  indictment,  to  answer 
the  charges  therein  ma  le  against  him  as  aforesaid,  to  be  issued 
by  the court  of  said  county  of  ;  and  after- 
wards, on  or  about  the  day  of  ..,  18...,  caused  the 

plaintiff  to  be  arrested  and   to  be  kept  in  custody,  restrained  of 

his  liberty  for  the  space  of montlis,  and  to  give  bail 

in  the  sum  of    dollars  to  obtain  his  release. 

VII.  That  the  plaintiff  did  appear  at  the   said  term   of  said 

court,  ready  and  willing  to  then  and  there  stand  trial 

upon  the  aforesaid  indictment  agaiust  him,  pursuant  to  and  as 
required  by  said  bond.  Whereupon  the  aforesaid  district  attor- 
ney, after  consulting  and  advising  with  the  defendant,  and  at 
his  request,  and  by  his  instructions,  did  then  and  there  move 
the  said  court  that  the  plaintiff  be  discharged  out  of  custody, 
and  be  fully  discharged  and  acquitted  of  the  said  indictment 
and  of  the  supposed  offense  therein  charged  against  him,  and 
be  no  further  prosecut'^d  thf>reon ;  whereupon  the  said  court, 
havln'^  heard  and    considered  all  that  the  said  defendant  and 


652  FORMS  OF  COMPLAINTS.  §   1789. 

the  people,  by  the  aforesaid  district  attorney,  could  sav  or  allege 
against  the  plaintiff  touching  and  concerning  the  said  supposed 
offense,  did  then  and  there  adjudge,  order  and  determine  tliat  the 
plaintiff  be  discharged  out  of  custody,  and  be  fully  discharged 
and  acquitted  of  the  said  indictment,  and  be  not  furtlier  prose- 
cuted tliereon. 

VIII.  That  the  said  indictment,  complaint,  and  prosecution  are, 
and  each  of  them  is,  wholly  ended  and  determined  in  favor  of  this 
plaintiff. 

IX.  [Special  damage,  if  any,  as  in  other  cases.] 

[Dkmand  of  Judumknt.] 

§  1789.  Dismissal. — An  immediate  dismissal  by  a  magistrate 
of  a  prosecution  wlien  commenced,  is,  it  would  seem,  prima  facie 
proof  of  the  want  of  probable  cause.^  Entry  of  nolle  prosequi 
was  held  insufficient  for  that  purpose.^ 

§  1790.  The  Same — Wiisre  Judgment  of  Acquittal  was 
Rendered. 

Form  No.  449 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of  ,  18...,  at ,  the 

defendant  caused  and   procured  to  be  sued  out  of  the 

court,  in  and  for  the  county  of  ,  a  certain  writ  of  at- 
tachment, in  a  certain  action  then  and  there  pending,  wherein  the 
said  A.  B.  was  plaintiff,  and  the  plaintiff  herein  was  defendant, 
directed  to  the  sheriff  of  said  county,  commanding  said  sheriff 
[here  state  substance  of  the  said  writ],  and  delivered  the  same  to 
the  said  sheriff,  and  caused  and  required  the  said  sheriff  to  levy 
said  writ  of  attachment  on  the  s-ore  of  goods,  wares,  and  mer- 
chandise of  the  said  plaintiff,  and  took  the  same  into  his  posses- 
sion, and  the  said  defendant  afterwards  applied  to  the  said 

court  [or  to  Hon.  C.  D.,  judge  of  said  court],  and  obtained  an 
order  from  said  court  [or  judge]  for  the  sale  of  said  goods  and 
merchandise,  and  caused  said  sheriff  to  sell  the  same  at  a  great 
sacrifice. 

II.  That  in  so  doing  the  defendant  acted  maliciously  and  with- 
out probable  cause,  and  unjustly  contrived  and  intended  to  injure 
the  said  plaintiff  and  break  up  his  business — he,  the  said  plaintiff, 
then  being  engaged  in  business  of  a  merchant. 

III.  That  the  said  action  of  the    said    defendant  afterwards 

>  Gould  V.  Sherman,    10  Abb.  Pr.  v.  Lntpman.  12  Gush.   (Mass.)  4R2:  6 

411.  Mod.  2tJl :  contra,  Yocuin  v.  Jr'oiiv,  1 

2  Bacon  v.  Townsptid,   2  C.   R.  51 ;  B.  Mou.  358. 
Bail  V.  Fisber,  20  Barb.  441 ;   Browa 


§  1792.  MALICIOUS  PROSECUTION.  653 

carae  on  for  trial  at  the  term  of  said  court,  18...,  and 

was  tried,  ami  a  verdict  and  judgment  rendered  in  favor  of  the 
said  plaintiff,  to  the  damage  of  the  said  plaintiff ...  dol- 
lars. 

[Demand  of  Judgment.] 

§  1791.  Acquittal  E.sssntial.— \n  action  for  malicious 
prosecution  can  not  be  maintained  until  the  plaintiff  has  been 
acquitted,  or  the  prosecution  is  finally  terminated  in  his  favor. 
The  determination  of  the  prosecuting  officer  never  to  bring  the 
indictment  to  trial,  for  the  reason  that  he  deems  the  charge  en- 
tirely unsuiiported,  is  not  sufficient. ^  The  plaintiff's  acquittal 
must  be  alleged.  An  allegation  that  he  has  been  discharged  is 
not  sufflcient.^  It  is  not  enough  to  aver  that  the  prosecuting 
offl  er  declared  the  complaint  frivolous,  and  refused  to  try  it.^ 
The  rule  that  the  prosecution  must  have  terminated  favorably 
to  the  plaintiff,  does  not  apply  in  case  of  an  attachment  against 
his  properly,  sued  out  in  bis  absence,  and  which  he  had  no  op- 
portu  ity  to  defend.'* 

§  1792.    For  Malicioa<3  Arrest  in  a  Civil  Action. 

Form  No.  450. 
[Title] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  the  defendant, 

maliciously  intending  to  injure  the  plaintiff,  made  affidavit,  and 
procured  one  A.  B.  to  make  an  affi  lavit,  in  an  action  brought 

against  this   plaintiff  by  ,  in   which  he  alleged  [set 

forth  the  grounds  of  the  false  arrest] ;  and  that  upon  said  affi- 
davits the  defendant  caused  to  be  issued  an  order  of  arrest 
against  this  plaintiff,  under  which  the  plaintiff  was  arrested  and 

imprisoned   for  the  space  of ,    and  compelled  to  give 

bail  in  the  sum  of dollars. 

II.  That  in  so  doing  the  defendant  acted  maliciously  and  with- 
out probable  cause. 

III.  That  on  the day  of ,  18...,  said  order 

was  vacated  by  said  court,  upon  the  ground  that  [set  forth  the 
grounds  on  which  it  was  vacated] . 

[Or,  III.  That  on  the day  of ,  18...,  such 

proceedings  were  had  in  such  action,  that  it  was  finally  deter- 
mined in  favor  of  this  plaintiff,  and  judgment  was  rendered  foi 
him  therein.] 

>  Grant  v.   Moore,    29   Cal.    644;  «  Thomason  v.  Demotte,  9  Abb.  Pr. 

Thomason  v.  Demotte,   9   Abb.   Pr.  242. 

24'i ;  S.  C,  18  How.  Pr.  529.  *  Bump    r.    Betts,     19     Wendell, 

«  Morgan  T.  Hughes,  2  T.  R  226;  421. 
Bacoa  v.  Townseud,  2  Code  R.  51. 


654  FORMS  OF  COMPLAINTS.  §   1793. 

rV.  [Special  damage.]  That  many  persons,  whose  names  are 
unknown   to   plaintiff,    hearing  of   the  arrest,  etc.    [as  iii  form 

No.  446],  to  the  damage  to  the  plaintiff dollars. 

[DttMAND  OF  Judgment.] 

§  1793.  Jurisdiction. — But  if  a  complaint  shows  that  the 
arrest  was  without  jurisdiction,  it  may  be  good  as  alleging  a 
trespass,  without  averring  a  determination  in  favor  of  plaintiff.^ 

§  1794.  Malice. — If  one  person  arrests  another  for  the  com- 
mission of  a  crime,  under  the  be  ief  that  the  person  arrested 
has  committed  the  crime,  the  person  making  the  arrest  can  not 
be  said  to  act  maliciously,  although  he  may  act  unlawfully. ^ 

§  1795.  Several  Causss  of  Action  United. — An  action 
for  malicious  arrest  and  prosecution,  or  either  of  them,  may  be 
united  with  an  action  for  either  an  injury  to  character  or  to  the 
person, 3  as  for  libel  or  slander.'* 

§  1796.  When  Action  will  Lie. — Where  a  complaint 
charged  a  crime,  and  the  prosecution  was  instituted  before  a 
tribunal  having  jurisdiction,  and  a  warrant  regular  upon  its 
face  was  issued,  and  the  defendant  was  arrested,  an  action 
brought  by  him  for  malicious  prosecution  will  be  sustained, 
although  the  complaint  was  not  sigaed  by  the  complainant.' 
An  action  for  malicious  prosecution  will  lie  against  a  creditor 
who  effected  the  arrest  and  imprisonment  of  his  debtor  by  al- 
leging that  the  demand  was  greater  in  amount  than  it  truly  was, 
so  as  to  hinder  the  debtor  from  getting  bail.  It  is  true  that  in 
order  to  sastaia  an  action  for  malicious  prosecution  the  law  re- 
quires that  the  proceedings  wh'ch  form  the  subject  of  complaint 
should  have  been  maliciously  instituted,  and  carried  on  without 
any  reasonable  or  probable  cause ;  but  there  would  ordinarily 
be  but  little  difference  in  the  injury  produced  to  the  defendant, 
whether  the  unfounded  prosecution  was  carried  on  without  any 
demand  whatever  to  justify  it,  or  whether  it  was  coupled  with 
a  claim  of  real  merit.^ 

§  1797.  When  Action  will  not  Lie. — An  action  in  a  case 
for  malicious  prosecution  will  not  lie  for  causing  a  person  to  be 
arrested  on  a  criminal  warrant,  charging  an  act  which  is  not  a 
crime,  but  merely  a  trespass,   as  the  warrant  was  void,  and  the 

>  Stpel  V.  "Williams,  18  Ind.  (K^rr),  •  Chapman  v.  Dodd,   10  Minn.    B'lO. 

161;  Searll  v.  McCrackea,   Iti  Huw.  «  I'hil.  on  Ev.  261;  3  Barn.  &  Cress. 

Pr.  2ti2.  139;  Dronefield  r.    Archer,     7  Eng. 

•  Lvon  V.  Hancock,  85  Cal.  372.  C.>m.  Law,  177;  23  Eng.    L.  and  Kq. 
»  Cal.  Codec.  P.,  sec.  427.  200;  Sommer   v.    Wilt,  4   Sersr.  &  11. 

*  Watson  V.  Hftzzard,  3  Code  R.  19;  18  Id.  54;  Brown  v.  Mclutyio, 
213 ;  Martin  v.  Mutii^on,  8  Abb.  Pr.  3.    43  Barb.  344. 


§   1800.     PERSONAL  INJURY  CAUSED  BY  NEGLIGENCE.  655 

pre  per  remedy  for  an  arrest  on  such  a  warrant  is  trespass.^ 
Bona  fiile  acts  of  a  parly  on  advice  given  by  counsel,  after  a 
full  and  fair  statement  of  the  facts,  is  evidence  of  a  probable 
cause,  however  erroneous  the  advice  may  be.' 


CHAPTER  V. 

FOR  PERSONAL  INJURY  CAUSED  BY  NEGLIGENCE. 

%  1798.  For  Injuries  Caused  by  Collision  of  Vehicle 
Driven  by  Servant. 

Form  No.  451. 
[Title.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the day  of ,  18..,.,  the  plaintiff  was 

driving  along  the  public  highway  of  the  city  of ,  in  a 

carriage  drawn  by  one  horse. 

II.  That  the  defendant  was  then  the  owner  of  a  wagon  and 
two  horses,  which  were  then  being  diiven  along  said  highway, 
in  the  possession  of  defendant  [or  of  defendant's  servant]. 

III.  That  the  defendant  [or  that  said  servants]  so  carelessly 
drove  and  managed  said  horses  and  wagon,  that  by  reason  of  his 
negligence  said  wagon  struck  the  plaintiff's  carriage  and  overthrew 
the  same,  and  threw  the  plaintiff  out  of  his  carriage  upon  the 
ground    [or  describe   the  accident],    whereby  the  plaintiff  was 

bruised  and  wounded,  and  was  for  days  prevented  from 

attending  to  his  business,  and  was  compelled  to  expend   

dollars  for  medical  attendance  and  nursing,  and dollars 

for  the  repair  of  his  said  carriage,  to  his  damage dollars. 

[D  KM  AND  OF  JUDGMKXT.] 

§  1799.  Carrier's  Contract. — Passenger  carriers  bind  them- 
selves to  carry  safely  those  whom  they  take  into  their  coaches 
or  cars,  as  far  as  human  care  and  foresight  will  go ;  that  is,  foi 
the  utmost  care  and  diligence  of  very  cautious  persons. ^  The 
words  "  care,  diligence,  and  foresight "  imply  a  relation  to  future 
events.* 

§  1800.  Damages. — If  by  the  negligent  driving  of  defend- 
ant's servant  his  vehicle  runs  into  another  which  is  driven  with 
due  care,  and  causes  the  horses  of  the  latter  to  take  fright  and 

'  Cramer  v.  Lott,  60  Penn.  405 ;  but  '  Story  on  Bailments,  bpc  601. 

BeeDeiiiiisv.Rran,  63  Barb.  145;  New-  *  Wh- aton  v.  N.  B.  and   M.  R.  R. 

field  V.  Copperinan,  47  How.  Pr.  87.  Co.,  89  Gal.  fiOO;  see  (^ivil  Code  Cal., 

»  Richardaon  v.  Virtue,  2  Hun.  208;  sees.  2100-2104,  inclusive. 
Eastuiau  T.  Keuor,  11  N.  H.  618. 


656  FORMS  OF  COMPLAIJhTS.  §    1801. 

run  away,  and  said  horse  runs  into  the  plaintiff 's  vehicle  and 
injures  him  wlien  he  is  using  due  care,  the  damage  is  not  too  re- 
mote to  V)e  recovered.^  In  a  case  of  simple  negiigence  in  which 
the  elements  of  fraud,  malice  or  opprt-ssion  do  not  enter,  only 
actual  damages  can  be  recovered.^  In  actions  of  this  chnracter, 
all  the  circumstances  in  the  case  may  be  taken  into  considera- 
tion in  making  up  the  estimate  of  damages,  and  the  jury  are 
not  confined  to  the  actual  damages  sustained,  and  where  the 
stage  at  the  time  was  driven  by  the  servant  or  agent,  the  prin- 
cipal is  liable  only  for  simple  negligence,  and  exemplary  dam- 
ages can  not  be  imposed.^  The  only  damages  which  can  be  re- 
covered in  such  actions  are  such  as  are  commensurate  with  the 
injury  alleged  to  have  been  sustained,  or  actual  damages.^ 

§  1801.  Defect  of  Vehicle. — A  carrier  of  passengers  for 
hire  does  not  warrant  that  the  carriage  in  which  the  passenger 
travels  is  roadworthy.  He  is  bound  to  use  all  vigilance  to  insure 
safety,  but  is  not  liable  for  a  defect  which  could  not  be  de- 
tected, and  which  arises  from  no  fault  of  the  manufacturer. ^ 

§  1802.  Liability  for  Negligence. — If  a  child  under  four 
years  of  age  is  injured  by  the  negligence  of  third  persons  in  the 
street  of  a  city  traversed  constantly  by  cars  and  other  vehicles, 
his  father  can  not  recover  for  loss  of  service  if  he  has  knowingly 
suffered  such  cbild  to  be  in  the  street  unattended. ^  Otherwise 
of  an  action  by  the  child  itself,  although  the  negligence  of  a 
volunteer  undertaking  to  interfere  for  the  child's  benefit  con- 
tributed to  the  injury.'''  One  who  sells  gunpowder  to  a  child 
eight  years  old,  knowing  that  he  is  unfit  to  be  trusted  with  it, 
is  liable  if  the  child,  using  the  care  of  which  he  is  capable,  ex- 
plodes it,  and  is  burned  by  the  same,  and  a  license  to  sell  gun- 
powder is  no  defense.* 

§  1803.  Master  and  Servant— General  Doctrine.— The 
general  doctrine  is  maintained  that  the  master  or  employer  is 
responsible  for  the  act  or  omission  of  the  servant  or  employee 
within  the  scope   or  his   employment  or  authority.^     One  whose 

*  McDonald  v.  Snelling  96  Mass.  *  Readhead  v.  Midland  R.  R.  Co., 
260.  L.  R.,  4  Q.  B.  379 ;  S.  C,  2  Q.  B.  412 ; 

«  Moody  V.  McDonald,  4  Gal.  297;  Du   Launins  v.    St.  Paul  etc.  R.  R. 

Sedt?.  on  Meas.  of  Dam.  39;  Keeiie  v.  Co..  2  Am,  R.  107. 

Lizardi,  8  La.  O.  S.  390.  «  Glassey  v.  Hestonville  R.  R.  Co., 

«The    Amiable  Nancy,    8    Wheat,  57  Penn.  172. 

546;  Wardrobe   v.    Cal.  Stage  Co.,  7  'North    Penn.     R.  R.   Co.    v.  M*- 

Cal.  120.  honev,  57  Penn.  187. 

*  Greenl.  on  Ev.,  sec.  253;  Whitte-  *  Carter  v.  Towne,  98  Mass.  567. 
more  V.  Cutter,  1  Gall.  478;  Batemaa  »  N.  Y.  &  N.  H.  R.  R  Co.  v.  Schiiv- 
V.  Goodvear,  12  Conn.  680;  Dain  v.  ler,  34  N.    Y.  30;  Chapman  ▼.  N.  V. 
Wycofl;"3  Seld.  193.  Cent  R.  R.  Co.,  33  Id.  869;  Drew  v. 


§    1805.     PERSONAL  INJURY  CAUSED  BY  NEGLIGENCE.  657 

servant  negfligently  throws  a  keg  out  of  a  window,  and  injures  a 
person  passing  through  a  passage-way  below,  is  liable,  akhough 
such  person  was  there  only  by  license.^  But  the  employer  is 
not  responsible  for  a  willful  injury  committed  by  an  employee 
not  within  the  scope  of  his  employment.*  For  injury  by  negli- 
gence, both  employer  and  employee  may  be  sued  together.^  A 
municipal  corporation  is  not  liable  for  negligence  of  members 
of  its  paid  fire  department.'* 

§  1S04.  Against  Common  Carriers— For  Injuries  Caused 
by  Overturning  Stage-coach. 

Foiin  No.  45S. 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  Tliat  on  the day  of ,  18..,  the  defendant 

was  a  common  carrier  of  passengers  for  hire  by  stage-coach 
between  and  

II.  Tliat  on  that  day,  as  such  carrier,  he  received  the  plaintiff 

upon  his  coach,  to  be  carried  from to ,  for  the 

sum  of dollars,  which  was  then  and  there  paid  by  the 

plaintiff  to  the  defendant. 

III.  That  while  he  was  such  passenger  at [or  near 

,  or  between and ],  the  said  coach  was, 

by  and  through  the  carelessness  and  negligence  of  the  said  de- 
fendant, overturned  and  thrown  down,  with  the  plaintiff  there- 
in, as  aforesaid,  by  means  whereof  the  said  plaintiff  was  greatly 
injured,  and  one  of  the  legs  of  said  plaintiff  was  broken,  and 
fractured,  and  bruised,  and  the  said  plaintiff  was  otherwise 
greatly  injured,  wounded,  and  cut,  insomuch  that  the  said 
plaintiff  then  became  sick,  lame,  and  sore,  and  so  continued  for 
the  space  of months  thence  next  ensuing,  and  was  du- 
ring all  that  time  prevented  from  attending  to  his  business  and 
carrying  on  the  same  ;  and  the  said  plaint  ff  was  forced  to  ex- 
pend, and  did  expend,  the  sum  of dollars  for  medical 

attendance  and  nursins:,  to  his  damage dollars. 

[Dkmand  of  .Judgment.] 

§  1805.  Essential  Averments.— It  is  only  necessary  to 
prove  the  overturn  and  the  injuries  suslained.  The  presump- 
tion of  law   is,  that  the   overturn   occurred   through  the  negli- 

Sixth   Av.  R.  R.  Co.,  26  Td.   49 ;   Lnn-  by  partial  rpvprsal :  Merrick  v.  Van 

net!  V.  Albany  Gas  Light  Co.,  46  Barb.  Santvoonl,  34  N.  Y.  208. 

264;  Carman  v.  Mayor  of    N.    Y.,  14  iCorriirnn  v.  Union  Sugar  Refinery, 

Abb.     Pr.  HOI ;    Annett   v.  Fuller.  I  98  .Mass.  577. 

Dal V,  502;    Mf-yer    v.  Second  Av.  R.  '(Jarvev  v.  Dung,  RO  How.  Pr.  315. 

K,    Co.,    8   Bos w.  305;     Merrick    v.  » Phelps  v.  Wait,  30  N.  Y.  78. 

131  aiimrd,  38    liarb.  574.    Not  affected  *  Howard  v.  S.  Francisco,  51  Cal.  62. 
EsTiK,  Vol.  I — 42 


658  FORMS  OF  COMPLAINTS.  §  1806. 

•gence  of  the  defendant.^  In  an  action  on  the  case  for  an  injury 
^sustained  by  the  upsetting  of  a  stage-coach,  the  declaration 
•alleged  that  the  plaintiff,  at  the  special  instance  and  request  of 
the  defendants,  became  a  passenger  in  a  certain  coach,  to  be 
carried  safely,  and  for  certain  rewards  to  the  defendants ;  and 
"that  thereupon  it  was  their  duty  to  use  due  and  proper  care  that 
•the  plaintiff  should  be  safely  conveyed.  The  breach  was  well 
assigned,  showing  the  neglect  and  consequent  injury  sustr^ined; 
and  it  was  held  that  the  defect,  if  any,  was  cured  by  section  32  of 
the  judiciary  act,  which  provides  that  no  litigant  shall  lose  his 
right  in  law  for  want  of  form.^  In  an  action  for  an  injury  sus- 
tained by  the  upsetting  of  defendant's  stage-coach,  the  plaintiff 
alleged  that  he  paid  for  his  passage  the  sum  of  ten  dollars ;  this 
was  held  to  be  a  material  allegation. ^ 

§  1806.  Overturning  Plaintiff's  Carriage. — In  a  case  for 
personal  injuries  caused  by  plaintiff's  horse  being  frightened  by 
two  loud,  sudden,  and  sharp  whistles  from  defendant's  engine, 
and  upsetting  his  carriage,  it  was  held  that  whether  or  not  the 
above  was  a  proper  signal  in  the  use  of  ordinary  care  was  for 
the  jury.     A  verdict  for  the  plaintiff  was  upheld.'* 

§  1807.  Paid  Fare. — Carriers  can  not  protect  themselves 
from  liability  for  gross  negli;enee,  by  contract.*  It  is  otherwise 
when  the  passenger  is  carried  free.^ 

§  1808.  Railroad  Company. — An  action  lies  against  a  city 
railroad  company  for  the  negligence  of  their  driver  in  respect  to 
stopping  the  car  and  assisting  young  and  infirm  persons  on.'' 

§  1809.  Stock  Running  at  Large. — Plaintiff  was  driving 
in  the  highway,  using  due  care,  when  defendant's  hog  running 
at  large,  contrary  to  the  sttitute,  frightened  plaintiff's  horse, 
and  his  minor  daughter  was  injured  in  consequence ;  it  was  held 
that  defendant  was  liable,  although  he  did  not  know  that  the 
hog  was  at  large.  ^ 

§  1810.  Who  Liable. — "Where  one  owning  a  carria-re  hires 
horses  and  a  driver  of  B.,  for  an  injury  resulting  from  the  care- 
lessness of  the  driver,  B.  alone  is  liable.*    A  municipal  corpora- 

^Boyce  v.  Cal.  Stage 'Co.,  25  Cal.  «  Kinnev  v.    Cent.    R     R.    Co.,   8 

460.  Vroom,  407 ;  but  see  Peiin.  K.  E.  Co. 

•  Stockton  V.  Bishop,  4  How.  U.  S.  v.  Butler,  67  Peiin.  335. 

155;  sen  also  Washington  v.  Ogden,  1  '  Drew  v.  Sixth  Avenue  R.  R.  Co^ 

Black.  4'i0.  8  Keyes,  429. 

»  Hrtrris  V.  Rayner,  8  Pick.  541.  »  .Jewett  v.  Gapp,  55  Me.  538. 

■♦  Hill  V.  Portland  K.  li.  Co.,  55  Me.  »  Quarman  v.  Burnett,  6  M.  &  W. 

438.  497;  Kapson  v.     Cubilt,    9    Id.   709; 

s  Illinois  Cent.  R.  R.  Co.  v.  Adams,  Hobbitt  v.  N.  W.  R.  K.  Co.,  4  Wolsh, 

42111.474;   spe  Adams  Exp.   Co.  v.  Hurlst.  &  Gord.  254:    Allen   v.  Hay- 

Haynea,  Id.*9, 98.  ward,  7  AdoL  &  Eilis  (N.  S.)  9G0. 


§1811.    PERSONAL  INJURY  CAUSED  BY  NEGLIGENCE.  659 

tion  is  liab'e  for  inju'ios  ensuing  from  neglect  of  its  employees 
or  offlaers.^  The  fact  that  the  driver  of  the  carriage  and  horses 
was  their  owner  was  conclusive  in  establishing  that  the  relation 
of  master  and  servant  did  not  exist ;  and  so  far  as  the  defend- 
ant's liability  rested  upon  the  existence  of  such  relation  he  was 
not  responsible  for  the  injury  which  the  plaintiff  received 
through  the  negligence  of  the  driver.' 
§  1811.    Against  a  Ra'lroad  for  Injuries  by  Collision. 

Form  No.  4^3. 
[Title.] 
The  ])laintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18  ...,  the  defendant  was 

a  corporation   duly   incorporated  under  the   laws  of  this  state, 

and  was  the  owner  of  a  certain  railroad,  known  as    the    

railroad,  together  with  the  track,  rolling  stock,  and  other  ap- 
purtenances thereto   belonging;  and   was  a   common    carrier  of 

passengers  thereupon  for  hire,  between and , 

in  the  state  of 

II.  That  on  that  day  the  defendant,  in  consideration  of  the 
sum  of dollars,  then  paid  to  it  by  the  plaintiff  there- 
for, undertook  and  agreed,  as  such  common  carrier,  to  trans- 
port and  convey  the  plaintiff  from to ,  as  a 

passenger,  and  the  plaintiff  thereupon  entered  one  of  the  cars 

of  the  defendant  to  be  so  conveyed  as  aforesaid  from 

to aforesaid. 

III.  That  while  he  was  such  passenger,  at [or  near 

the  station  of ,  or  between  the  stations  of and 

],  a  collision  occurred  on  the  said  railroad  caused  by 

the  negligence  of  the  defendant  and  its  servants,  whereby  the 
plaintiff  was  much  injured  [state  the  injury  according  to  fact, 
and  the  special  damage,  if  any]. 

[Or,  III.  That  the  defendant  and  its  servants,  in  managing 
said  cars  in  which  plaintiff  was  a  passenger,  were  so  careless 
and  negligent  that  it  was  unsafe  for  him  to  remain  in  one  ol 
them;  and  that  in  order  to  free  himself  from  the  danger,  he  was 
obliged  to  leap  from  the  car,  and  in  doing  so  was  injuredj  [state 
injury  according  to  the  fact.] 

IV.  By  means  whereof  the  plaintiff  hath  been  damaged  in 
the  sum  of dollars. 

[DSUAND  OF  JUDOMBKT.] 

•Lloyd  ▼.  Mayor  ofN.  Y.,  1  Peld.        •  BonirRce  v.  Eelyea,  6  Abb.  Pr. 
869 :  contra,  Howard  v.  Sun  Francisco,     (N.  iS.)  259. 
61Cal.52. 


660  FOUMS  OF  COMl'LAlNXa  §    1812. 

§  1812.  D3gre9-3  of  Ne^li^eaco. — Degrees  of  noo;'i'xence 
are  matters  of  proof  and  not  of  avennent;  and  a  jjeneral  alle- 
gation of  negligence,  want  of  care  and  skill,  etc.,  is  sulH  lent 
in  an  action  for  injuries  caused  by  such  negligence,  wiietiier 
the  defendant  is  liahle  for  onlinary  or  gross  negligence.'  And 
an  averment  of  malice  does  not  vitiate  the  pleailing.* 

§  1813.  Diligenc3 — The  same  diligence  is  not  required 
from  a  railroad  company  toward  a  stranger  as  toward  a  passen- 
ger. The  care  required  is  that  whicu  experience  has  found 
reasonable  and  necessary  to  prevent  injury  to  others  in  like 
cases.*  A  railroad  company  is  not  liable  for  injuries  received 
by  a  passenger  wliile  voluntarily  and  unnecessarily  standing  on 
the  platform  of  a  car  in  m  )tion,  although  by  the  expres:*  per- 
mission of  the  conductor  and  brakeman.'* 

§  1814.  Gsnsral  AvsrniJnt  of  N3>Ug3nc3. — Ordinarily 
a  general  averment  of  negligence  is  sufflvjient  to  admit  proof  of 
the  special  circumstances  constituting  it.  Thus,  in  an  action 
against  a  railroad  company  for  running  over  a  child,  evidence 
is  admissible  under  such  a  general  averment  that  there  were  no 
suitable  brakes  or  guards  in  front  of  the  car  where  the  driver 
was  stationed.^ 

§  1815.  Nagligencs  Ganerally,  and  also  Specific  Acts. 
Under  a  complaint  alleging  negligence  generally,  and  also  spe- 
cifying particular  acts  of  negligence,  evidence  of  any  other 
kinds  of  negligence  is  admissible;  the  general  allegation  being 
sufficient,  the  particular  charges,  being  surplusage,  should  not 
affect  the  reception  of  evidence. <*  Negligence  is  a  question  of 
fact,  or  of  mixed  law  and  fact ;  and  in  pleading  it  is  only  neces- 
sary to  aver  negligence  generally,  not  the  specific  facts  consti- 
tuting the  negligence.' 

§  1816.  Particular  Facts. — The  complaint  in  an  action 
against  a  railroad  company,  for  running  over  a  person  with  an 
engine,  need  not  show  the  particular  facts  constituting  negli- 
gence on  the  part  of  the  defendant,  if  it  charges  such  negligence 
in  a  general  way.  Such  complaint  must  show  that  there  was  no 
fault  on  the  part  of  the  person  run  over.^ 

>  Nolton  V.  Western  R.  R.  Co.,  15  »  OMSeld  v.  New  York  and  Harlem 

N.  Y.  444.  K.  R.  Co.,  14  N.  Y.  310. 

*  Winieraon  v.  Eisfhth    Avenue  R.  •  E  Ifijerton  v.  New  Y'ork  and  Har- 
R.    Co.,     2    Hilt.  389;     Robinson    v.  lem  K.  R.  Co..  35  Barb.  389. 
"Wheeler,  25  N.  Y.  252.  '  McCauley  v.  Davidson,  10  Minn. 

'Brtltimore  and   Ohio  R.  R.  Co.  v.  418. 

Breinig,  25  Md.  378;  see  Philadelphia,  *  Indiannpnlis     etc.    R.   R.  Co.   v. 

W.  and  B.  R.  R.  Co.  v.Kerr,  Id.  521.  Keeley's    Adm'r,    23    Ind.    133;     St^ 

*  Hitkev  V.  Boston  and  L.  R.  R.  l<ouis  etc  R.  W.  Co.  v.  Mathias,  60 
Co.,  96  Mass.  42^.  Id.  Ho. 


§   1820.    PERSONAL  INJURY  CAUSED  BY  NEGLIGENCE.  661 

§  1817.  S3V3ral  Acts  of  Negligence. — If  the  plaintiff 
would  rely  on  several  acts  of  negligence  as  the  cause  of  one  in- 
jury, he  may  allege  all  the  acts  of  negligence  in  one  count, 
and  aver  that  they  were  the  cause ;  and  if  he  prove  upon  the 
trial  that  any  one  of  them  was  the  cause,  his  complaint  is  sus- 
tained.^ 

§  1818.  SufScient  Averment  of  Negligence. — In  an  ac- 
tion against  a  railroad  company  for  injuries  caused  by  a  collision 
with  its  cars,  a  complaint  which  alleges  that  the  defendant,  with 
carelessness  and  with  gioss  neg'igence,  caused  one  of  its  engines 
to  run  upon  the  track,  etc.,  sufficiently  charges  negligence. ^ 

§  1819.  Without  the  Bounds  of  the  State. — An  action 
can  not  be  maintained  under  the  statute  of  a  wrongful  act  caus- 
ing death,  where  such  act  occurred  without  the  bounds  of  the 
state.-'' 

§  1820.    The  Same— By  Car  Running  off  Track. 

Form  No.  454^ 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  [Same  as  in  preceding  form.  | 

II.  That  on  that  day  the  defendant  received  the  plaintiff  as  a 
passenger  ia  one  of  the  carriages  of  the  defendant  on  said  road, 
to  be  transported  from  to 

III.  That  while  he  was  such  passenger,  at ,  the  said  de- 
fendant, not  regarding  its  duty  in  that  behalf,  did,  by  its  servants 
and  agents,  so  carelessly,  negligently,  and  unskillfully,  conduct 
the  running  of  said  cars  and  railroad,  that,  on  the  day  and  year 
aforesaid,  by  the  carelessness,  negligence,  and  default  of  its  said 
agents  and  servants,  and  for  want  of  due  care  and  attention  to  its 
duty  in  that  behalf,  the  said  car  was  run  off  the  track  of  said 
railroad,  and  thrown  down  the  embankment  thereof,  whereby  the 
said  plaintiff  was  greatly  cut,  bru  sed  and  wounded,  so  that  he, 
the  said  plaintiff,  became  and  was  sick,  lame,  and  unable  to  walk, 
and  was  wholly  unable  to  attend  to  tlie  transaction  and  perform- 
ance of  his  usual  and  necessary  business,  and  so  continued  from 
thence  hitlierto ;  and  said  plaintiff  has  been  put  to  great  expense, 

to  wit,  to  the  amount  of dollars  in  endeavoring  to  cure 

his  said   wounds,  bruises,  and  fractures,  to  his  damage 

dollars. 

[Demand  of  Judgment.] 

I  Diolcpns  V.  N.  Y.  Cent.  R.  R.  Co.,  '  Mnhlfir  v.  Norwich  and  N«w  York 

13  11>'W.  Pr.  "iJS  TrHiisportatiun     Gumpaay,    45    Barb. 

«t)hioetcJJ.  R.  Co.  V.  Davis,  28  22<>. 
lud.  6  Jii. 


862  FORMS  OP  COMPLAINTS.  §   1821. 

§  1821.  The  Same  -By  Negligently  Starting  Cars  with- 
out Q.vln3  Passenger  Opportunity  to  GeiOS, 

Foitn  No.  455, 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  II.   [Same  as  in  form  No.  453.] 

III.  That  while  plaintiff  was  such  passenger,  and  at  the 

station  of  said  railroad,  when  in  the  act  of  getting  out  of  and 
off  from  said  car  and  being  still  thereon,  to  wit,  on  the  plat- 
form thereof,  the  said  car  was,  through  the  neglect  of  the  ser- 
vant of  said  defendant,  suddenly  started  and  put  in  motion, 
without  allowing  said  plaintiff  sufficient  time  to  safely  get  off, 
and  in  consequence  thereof,  and  in  consequence  of  the  defect 
and  insufl3,ciency  of  said  company's  said  platform,  and  of  the 
couplings  connecting  said  car  with  the  other  cars  of  the  same 
train,  and  of  the  defective  and  insuliicient  guards  around  said 
platform,  and  across  the  passage-way  leading  therefrom  to  the 
next  adjacent  car,  and  in  further  consequence  of  the  insufficient 
and  imperfect  means  provided  for  giving  the  alarm,  preparatory 
to  starting  said  train,  and  of  the  negligence  and  carelessness  of 
the  servants  of  said  defendant,  in  the  running  and  conducting 
of  said  train,  the  said  plaintiff  was  violently  thrown  on  the  track 
between  the  cars  of  said  defendant,  and  sustained  great  injury, 
to  wit,  one  of  his  feet  was  crushed  by  a  wheel  of  one  of  said 
cars  passing  over  it,  so  that  its  immediate  amputation  became 
necessary,  and  it  was  accordingly  amputated. 

IV.  That  in  the  act  of  getting  off  from  said  car,  as  aforesaid, 
the  plaintiff  exercised  and  observed  all  due  and  proper  cai-e  and 
precaution. 

V.  [Allegation  of  any  special  damages.] 

[Demand  of  Juuqmknt] 

§  1822.  For  Injuries  Caused  by  Negligence  on  a  Rail- 
road, in  Omitting  to  Glv3  Signal. 

Fuim  No.  456. 

[TlTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of  ,  18..,  the  de- 
fendant was  a  corporation  duly  incorporated  under  and  pur- 
suant to  the  laws  of  this  state,  and  was  the  owner  of  a  certain 

railroad,  known  as    railroad,  together  with    the    track, 

rolling  stock,  and  other  appurtenances  thereto  belonging. 

II.  Tliat  on  that  day  the  plaintiff  was  traveling  in  a  carriaore 

along    the   public  highway,    from    to    ,    which 

public  highway  crosses  the  railroad  aforesaid,  at  ,  and 


§   1824.     PERSONAL  INJURY  CAUSED  BY  NEGLIGEE! CE.  6G3 

as  the  plaintiff  had  reached  said  crossing,  the  defendants  care- 
lessly and  negligently  caused  one  of  their  locomotives  [with  a 
train  of  cars  attached  thereto]  to  approach  said  crossing,  and 
then  and  there  to  pass  rapidly  over  the  track  of  said  railroad, 
and  negligently  and  carelessly  omitted  their  duty  while  approach- 
ing said  crossing,  to  give  any  signal  by  ringing  the  bell  or 
sounding  the  steam-whistle,  by  reason  whereof  the  plaintiff  was 
unaware  of  their  approach. 

III.  That  in  consequence  thereof,  the  locomotive  struck  the 
plaintiff's  horse,  and  overset  the  plaintiff's  carnage,  and  plaint- 
iff was  thrown  out  upon  the  ground  with  such  force  as  to  frac- 
ture his  left  arm  [or  other  injuries], 

IV.  That  thereby  the  plaintiff  was  put  to  great  pain,  and  was 

and  still  is  prevented  from  going  on  with  his  business  as  , 

and  is,  as  he  believes,  permanently  injured,  and  was   otherwise 

greatly  injured,  and  was  compelled  to  expend dollars 

for  medical  attendance  and   nursing,  to    his  damage  

dollars. 

[Demand  op  Judgment.] 

§  1823.  Omission  of  Duty. — The  facts  which  are  relied 
on  as  raising  a  duty  must  be  alleged  where  the  negligence  con- 
sists in  the  omission  of  a  duty.^  An  existing  duty  or  obligation 
is  an  essential  an  1  necessary  prerequisite  or  predicate  of  an 
affirmation  of  neglect  or  failure  to  perform.^  Neglect  to  ring 
the  bell  for  the  eutire  distance  required  by  law  does  not  neces- 
sarily make  the  company  liable,  if  the  bell  was  rung  or  whistle 
sounded  for  such  a  distance  from  the  crossing  as  to  give  the  de- 
ceased timely  and  sufficient  warning  of  the  approaching  train  to 
prevent  him  from  trying  to  cross  the  track. ^ 

§  1824.  By  Steamboat  Explosion. 

Fonn  No.  457. 

[TiTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  hereinafter    mentioned,   the   defendants 

were  common  carriers  of  passengers  for  hire,  between 

and ,  and  were  the  proprietorsof  a  steamboat,  named  the 

,  employed  by  them  in  carrying  passengers  and  merchan- 
dise on  the river,  from to  ,  for  hire. 

*  Citv  of  Buffalo  v.  HoUoway,  7  N.  soe  McGinity  v.  Mayor  etc  ,  5   Duer, 

T.  (8  tielil.)  49  . ;    affirming  ft.   C.  14  t)74. 

Barb.   )01;    Taylor  v.  AtlaiiUo  Mu-  «  Kustacp  v.  Jahns,3RCal.3:  O'Brien 

tual    Insurance    Companv,    2     Bu^^w.  v.  dpweil,  59  Harb. 497. 

lit.l;    Ctmgreve  v.   Morgan,  4    Dii*-,  3(j^„k  v.  N.  Y.  Cent.  T.  R.  To,,  5 

439;  Spymour  v.  Maddox,  IH  Q    B.  I  an-.  401  ;  htii  see  R  ihiiuou  V.  W.  P, 

3Jb;  tJ.  (J.,  71  Eug.  Com.  L.  Z2X>\  ai.d  R.   B.  Co.,  48  Cal.  410. 


<64  FORMS  OF  COMPLAINTS.  §  1825. 

II.  That  on  the day  of ,  18,..,  the  defenflants 

received  the  plaintiff  and  his  wife  and  daughter  into  said   boat 
for  the  purpose  of  safely  conveying  them  therein  as  passengers, 

from to ,  for dollars,  paid  to  them  by 

the  plaintiff  therefor. 

III.  That  the  defendants  so  negligently  and  unskillfuUy  con- 
ducted themselves,  and  so  misbehaved  in  the  management  of 
said  boat,  that,  through  the  negligence  and  unskillfulness  of 
themselves  and  their  servants,  the  steam  escaped  from  the 
boiler  and  engine,  and  burned  or  scalded  [otlicrwise  state 
injury,  according  to  the  facts],  the  ijlaintiff  and  his  wife  and 
daughter. 

IV.  That  in  consequence  thereof,  the  plaintiff  and  his  said 
wife  and  daughter  became,  and  for  a  long  time  remained  ill ; 
the  plaintiff  was  deprived,  and  for  a  long  time  to  come  will  be 
deprived,  of  the  assistance  and  services  of  his  wife  and  daughter, 
and  was  compelled  to,  and  did  expend  dollars  in  at- 
tempting to  cure  himself  and  his  wife  and  daughter,  and  was  for 

months  prevented  from  pursuing  his  business,  and  was 

otherwise  greatly  injured,  to  his  damage  dollars. 

[Dkmand  of  Jci>qmknt.] 

§  1825.  Condition  of  Boiler. — The  certificate  of  an  in- 
spector does  not  discharge  the  liability  of  the  owner  of  a  boiler 
to  the  party  injured  by  its  bursting.^ 

§  1826.  Master  and  Servant. — The  owner  of  water-craft 
is  not  liable  for  the  injury  willfully  committed  by  the  master  or 
pilot  running  her.^ 

§  1827.  Negligent  Delay.  —A.  transportation  company  is 
liable  to  a  passenger  for  injury  occasioned  by  negligent  delay. ^ 

§  1828.  Negligenc3  in  Navigating  Water-craft. — The 
plaintiff  in  an  action  for  damages  for  injuries  caused  by  negli- 
gence in  sailing  water-craft,  must  show  that  he  used  ordinary 
care.^ 

§  1829.  Rule  of  Damages. — Where  the  collision  occurs 
without  negligence  of  either  party,  each  must  bear  his  own  loss.^ 

*Pwarthout  v.  New  Jersey  Steam-  Mayor  etc.,  5  Mr>.  230;  Simpson  v. 
boai  Co.,  46  Barb,  222.  Hand,  6  Wharf. 811  ;  SieHtnboiit  Ciip- 

*  Turnpike   Co.    v.   Vanderbilt,    1      per  v.  Logan,  18  Ohio,  875. 

Hill,  480.  sStHinbMck  V.   Kae,  It  tiuw.  U.   S. 

«  Vail  Buskirk  V.  Roberts,  31  N.  Y.  532;    Williamson  v.   B  iihU,   13    Id. 

6C1.  101;  Haliierman  V.  BfCvwiih,  4   JVIc- 

*  Barnes  V.  Cole,  21  Wend.  188;  Lpan, -iBfi;  Barrett  v.  W  Iimm.  .p.  Id. 
Hoidnrmiin  v.  Beckwith,  4  MtLean,  680;  4  Hurring.  228;  Tuts  Jii  g  Ve- 
28ti;   KHihbim   v.   Payne,    19  Wend,  ruiiia  v.  Clara,  1  Tex.  aO. 

^99:    Steamboat  United    Stales    v. 


§   1831.    PERSONAL  INJURY  CAUSED  BY  NEGLIGENCE.  6C5 

§  1830.  Rules  of  Navigation. — Steam  vessels  are  bound  to 
keep  clear  of  sailing  vessels ;  they  are  treated  as  having  wind  in 
their  favor.^ 

§  18  n.  For  Injuries  to  Engineer  of  a  Railroad  Com- 
pany, Caused  by  a  Collision. 

Form  No.  548, 
[Title.]  ' 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  ,  the  de- 
fendant w:is  a  corporation,  duly  incorporated  under  and  pursu- 
ant to  the  laws  of  the  state  of  California,   and  was  owner  of  a 

certain   railroad  known  as railroad,   together  with  the 

track,  cars,  and  locomotives  thereto  belonging. 

II.  That  one  of  said  locomotives,  and  the  train  thereto  at- 
tached,   ran   from  to ,  and  back  again,  each 

day;    and  another  thereof  ran  from    to    said  

and  back  again,  each  day;  which  said  locomotives,  with  their 
respective  trains,  were  used  and  accustomed  to  meet,  and  safely 
pass  each  other,  at 

III.  That  the  said  plainiiff  was  employed  by  the  snid  defend- 
ant as  an  engineer  upon  one  of  said  locomotives,  at  and  for  a 
certain  hire  and  reward  agreed  upon  by  the  parties  in  that  be- 
half, and  was  accustomed  to  stop  the  said  last  mentioned  loco- 
motive  at aforesaid,   under  the    instruction   by   him 

received  from  the  said  defendant,  and  there  to  pass  the  said 
other  locomotive  as  aforesaid. 

IV.  That  by  reason  of  the  premises  it  became  the  duty  of  the 
said  defendant  to  give  the  said  plaintiff  due  notice  of  any  change 
in  the  place  of  meeting  and  passin:^  of  the  said  locomotives  and 
their  respective  trains,  yet  the  said  defendant,  not  regarding  its 

said  duty,  did,   on  the  day  of ,  18  ..,   change  the 

place  of  meeting  and   passing   of  said   locomotives,    with  their 

respective  trains,  from  said   to  said   ,  and  did 

direct  said  change  to  be  carried  into  effect  on  the  day  of 

18... 

v.  That  the  said  defendant  wholly  neglected  and  failed  to 
give  the  said  plaintiff  notice  of  said  change  in  the  place  for 
the  passing  of  said  locomotives  with  their  respective  trains,  and 
whilst  the  said  plaintiff  was  proceeding,  in  his  capacity  of 
eno-ineer  as  aforesaid,  on  one  of  said  locomotives,  with  the  train 
thereto  belonging,  according  to  the  directions  before  that  time 

1  St  John  V.  Paine,  10  How.  U.  S.  Thft  Europa,  2T'1.  5>7;  Western  Belle 
583;  Newuia  v.  iStebbins,  10  Id.  686;    v.  Waguer.  11  Mo.  30. 


666  FORMS  OF  COMPLAINTS.  §   1832. 

given  to  the  said  plaintiff  by  the  said  defendant,  between 

and aforesaid,  the  other  locomotive  with  its  train, 

coming  from to ,  ran  against  it,  and  violently 

crushed  the  same. 

VI.  That  by  reason  thereof  the  plaintiff  was  severely  scalded, 

bruised,  burtjt,  and  wounded,  and  became  sick,  sore,  lame,  and 

disordered,  and  so  remained  for  the  space  of montlis, 

and  was  compelled  to    expend   the  sum  of  dollars  for 

medical   attendance;  and  was   prevented  from  attending  to  his 

ordinary  business,  and   lost   all  the  wages  he    otherwise  would 

have  earned,  to  wit,  the  sum  of dollars,  to  bis  damage 

dollars. 

[Dkmant)  of  Judgment.! 

§  1832.  Company,  when  not  Liable. — ^The  fact  that  a 
railroad  company's  servant  was  of  a  higher  grade  than  another 
servant  of  said  company,  injured  through  his  negligence,  does 
not  make  the  company  liable. ^ 

§  1833.  Employer,  when  Liable. — If  injury  to  the  em- 
ployee results  from  fault  or  negligence  on  the  part  of  the 
employer,  the  employer  is  liable. ^  But  if  such  injury  results 
from  defects  in  machinery,  etc.,  notice  of  such  defect  must  be 
brought  home  to  the  employer.^  An  allegation  that  defendant 
"negligently  provided"  such  machinery,  is  held  a  sufficient 
averment  of  knowledge.* 

§  1834.  Joinder  of  Parties. — Master  and  servant  may  be 
joined  as  defendants  in  an  action  to  recover  for  the  negligence 
of  the  servant.* 

§  1835.  Mutual  Negligence. — ^The  rule  that  the  plaintiff 
can  not  recover  if  his  own  wrong  as  well  as  that  of  the  defend- 
ant conduced  to  the  injury,  is  confined  to  cases  where  his 
wrong  or  negligence  has  immediately  or  approximately  con- 
tributed to  the  result.*  A  slight  want  of  care  on  the  part  of 
the  plaintiff  will  not  excuse  gross  negligence  by  the  defendant.''     . 

§  1836.  Want  of  Ordinary  Care. — In  Indiana,  in  an  action 
against  a  railroad  company  by  one  of  its  servants  to  recover  for 
injuries  received  through  the  negligence  of  another  servant,  the 

1  Shauok  V.  NortViprn  Central  R.  R.  *  Knares^oroiiefh  v.  Belcher  S.  M. 

Co.,  25   Md.   402;    Gumberlnnd   (!oh1  Co..  8  Sawver,  440. 

and  Iron  Co.  v.  Scally,  27  Md.  r-,S9i  *  Montfort    v.   Hughes,     8    K    D. 

McLf-an   v.  Blue    Point   Gravel  Miu,  Smith,  591. 

Co.,  51  Cal  20.5.  «  Kline  v.   C.  P.  R.  R.Co..  37  Cal. 

'Ryan  v.   Fowler,  24  N.  Y.  410;  400;  ciiinsfNpedham  v  San  Francisco 

Connolly  V.  PoiUon,  41  Barb.  360.  and  S.  J.  R.  R.  Co.,  37  Id.  409. 

8  Kunz    v.   SU'wart,   1   Ddv,   431;  "<  \i  qu"tle  v.  People's  Trans.   Co., 

Loonain    v.  Brock  way,  28  How.  Pr.  2  Or.  200. 
472. 


§   1837.     PERSONAL  INJURY  CAUSED  BY  NEGLIGENCE.  667 

complaint  must  allege,  either  expressly,  or  by  statincj  facts 
from  which  it  clearly  appears,  that  the  plaintiff  dicl  not  by  his 
own  fault  or  negligence  contribute  to  the  injury. i  Gmerally, 
however,  it  is  not  necessary  for  the  plaintiff  to  allege  in  his 
complaint  that  the  injury  happened  without  any  want  of  ordi- 
nary care  on  his  part ;  except  where  the  facts  alleged  are  such 
as  to  raise  a  presumption  of  such  fault  in  him.^ 

§  1837.  For  Injuries  to  Engineer  of  a  Railroad  rom- 
paay — Said  Company  having  Used  a  Condemned  Loco- 
motive. 

Foi-m  No.  459. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  the  defendant  was 

a   corporation,    duly   incorporated   under   and   pursuant  to  the 

laws  of  the  state  of ,  and  was  the  owner  of  a  certain 

railroad,  and  of  a  locomotive  propelled  by  steam  on  said  rail- 
road, and  by  said  defendant  used  and  employed  in  carrying  and 
conveying  passengers  and  goods  [or  hauling  trains  of  cars  con- 
taining passengers  and  goods,  upon  and  over  the  said  railroad 
of  the  said  defendant,  from  to 

II.  That  the  said  plaintiff  on  the  day  and  year  aforesaid,  at 

aforesaid,  and  at  the  time  of  the  committing  of  said 

grievances,  was  in  the  employ  of  the  said  defendant,  as  engineer 
upon  said  locomotive,  so  moved  and  propelled  by  steam  as  afore- 
said; and  that  it  then  and  there  became  and  was  the  duty  of  the 
said  defendant  to  procure  a  good,  safe,  and  secure  locomotive, 
with  good,  safe,  and  secure  machinery  and  ai)paratus,  to  move 
and  propel  the  same  as  aforesaid. 

III.  That  the  said  defendant  conducted  itself  so  carelessly, 
negligently,  and  unskillfuUy,  that,  by  and  through  the  careless- 
ness, negligence,  and  default  of  the  said  defendant  and  its  ser- 
vants, it  provided,  used,  and  suffered  to  be  used,  an  unsafe, 
defective,  and  insufiicient  locomotive,  of  all  which  it  hud  no- 
tice. 

IV.  That  for  want  of  due  care  and  attention  to  its  duty  in 

that  behalf,  on  the  said  dnj  of ,  18...,  at , 

aforesaid,  and  whilst  the  said   locomotive  was  in  the    use   and 

»  Evansville   R.  R.  Co.  v.  Dexter,  Holt  v.  Whatlev,  51  A1«.  5R9;  Texas 

24  Iiid.  411.  &  P.  R.  VV.  Co.' V.  Murphy.  4«  Texas. 

'.Johnson   v.  Hudson   River  R.   R.  356;  Robinson  v.  W.  P.  R.  li.  Co.,  48 

Co..  6  Duer.  21  ;   S.  C,  20  N.   Y  65;  ChI.    409;    contra,    Louisville  etc.   R. 

Wolfe   V.  Suprvisors   of  Richmonil,  Co.  v.  Boland,   b/i   Ind.  H'.iS;  see  also 

11    .Ahb.  Pr.  270;  S.  C,  IS   H..w.  Pr.  ChicHtro  «&  N.  W.  K  Co.  V.  Coss,  73 

870;  Burdick  v.  VYorral,  4  Barb.  596;  III.  394. 


668  FORMS  OP  COMrLAINTS.  >    .     i8. 

service  of  said  defendant,  upfin  snid  railroad,  anl  vvliMst  ihe 
said  plaintiff  wa-?  on  the  sama,  in  tln^  capacity  aforesaid,  f  )r  the 
said  defendant,  the  boiler  connecti-d  with  the  engine  of  the  snid 
locomotive,  by  reason  of  the  unsafene>;9,  defectiveness,  an  1  in- 
security thereof,  exploded  ;  whereby  large  quantities  of  steam 
and  water  escaped  therefrom,  and  fell  upon  the  sni  1  plnintiff, 
by  which  he  was  greatly  scalded,  burnt,  and  wounded,  and  be- 
came sick,  s)re,  and  disordere  1,  anl  so  reiuaiae  I  for  the  space 

of months,  and  was  compelled  to  expend  the  sum  of     

dollars  for  medical  attendance,  and  was  prevented  from  attend- 
ing to  his  ordinaiy  business,  and  lost  all  the  wages  he  othirwise 

would  have  earned,  to  wit,    the   sum   of dollars,    to   his 

damage dollars.^ 

[D  EM  AND  or  JtTDGMKNT.] 

§  1838.  Company  Liable  for  Acts  of  Servants. — Tt  has 
been  held  in  a  case  where  men  are  in  the  employ  of  a  manufac- 
turing company,  that  where  an  injury  is  suffered  through  the 
gross  carelessness  of  the  agent  of  tlie  company,  the  company  is 
not  liable  in  damages,  where  both  the  injured  party  and  the 
agent  through  whose  neglect  the  injury  was  caused,  were  en- 
gaged in  their  respective  duties.^  It  has  been  the  opinion  in  a 
large  number  of  cast  s  very  similar  to  those  referred  to,  that  the 
inquiry  should  be  made,  "  Did  the  accident  happen  through  the 
fault  of  the  company  or  the  fault  of  its  servants?"  and  if 
through  the  fault  of  the  servants,  and  without  any  fault  on  the 
part  Oi  the  company,  then  it  would  not  be  liable.  In  the  case 
of  Keegan  v.  Western  Railroad  Corporation,  4  Seld.  175,  it 
was  held  that  the  defendant  was  liable,  on  the  ground  that  the 
neglect  was  that  of  the  corporation,  and  not  of  its  servan  s,  and 
so  did  not  come  within  the  principle  established  in  Coon  v.  S. 
&  U.  R.  R.  Co.,  1  Id.  492.  The  locomotive  in  this  case  had 
been  reported  as  insufficient  by  the  engineers,  but  the  corpora- 
tion c  ntinued  to  use  it;  hence  it  was  the  fault  of  the  corpora- 
tion, and  not  of  its  servants.  Where  the  injury  was  alleged  to 
have  been  caused  by  the  negligence  of  an  engineer  who  was  em- 
ployed by  a  superintendent  wlio  had  full  authority  and  control 
of  the  work,  and  employed  and  discharged  the  workmen,    the 

1  Thf  flhove  form  is  partially  taken  court  of  the  state  of  Ohio,   in  Little 

from    Na^li's    Pleadiiii;*   and    Forms,  MiHnii    Kailroad   Co.   v.    Stevens,    20 

and  is  iierf"  given,  tililio'jgh  there  are  Ohio,  415.      But   it  seems  the   court 

grave    dt>ul>ls   about  an  action  lying  in    MiGlyiin  v.  Brodie,   bl    Cal.   376, 

Ugainst  tlie  railroad  company  in  a  case  holds  to  a  diflerent  doctrino. 
of  tloit  chaiHcti-r.     This   action   was,         '  Albro   v.    Agawam    Canal   Co.,    6 

however,  sustained  by  the  Supreme  Cush.  75. 


§   18  U.     PERSONAL  INJURY  CAUSED  BY  NEGLIGENCE.  669 

complaint  must  also  allege  that  the  defendants  were  necrligent 
in  liie  aelfction  of  their  superintendent,  or  it  does  not  slate  a 
cause  of  action  aa:a'nst  them.* 

§  1839.  Liab  r.ty  of  Master. — A  master  is  bound  to  use 
reas  >n:ible  care  and  diligence  to  prevent  accident  or  injury  to 
his  servant,  in  the  course  of  his  employment,  and  is  responsible 
in  daranges  for  failure  to  do  so.^  A  common  employer  is  not 
rep'»iisilile  for  the  injury  to  one  servant,  occasioned  by  the  neg- 
ligence of  another,  in  the  course  of  their  common  emplojment, 
unle-<s  he  himself  was  in  fault.'  A  railroad  comi)any  having 
einpl  lyed  competent  persons  to  supervise  and  inspect  its  road- 
bed and  bridges,  is  not  liable  for  an  injury  to  one  of  its  servants, 
eausc'l  by  the  falling  of  a  bridge,  in  consequence  of  a  latent 
defect.'* 

§  1840.  Risk  of  Employee. — Tn  a  California  case  it  is  held, 
that  "if  an  employee  works  with  or  near  machinery  which  is 
unsafe,  and  from  which  he  is  liable  to  sustain  injury,  with  a 
knovvU'dij^o  or  means  of  knowing  its  condition,  he  takes  the  risk 
incident  to  the  employment  in  which  he  is  thus  engaged,  and 
can  not  maintain  an  action  for  injuries  sustained  arising  out  of 
accident,  resulting  from  such  defective  condition  of  the  ma- 
chinery."* 

§  1841.  By  Executor  or  Administrator,  against  a  Rail- 
road Cooipany,  for  Injuries  Causing  Death. 

Fonn  No.  460. 

[TlTLB.] 

The  plaintiff,  as  the  executor  [or  administrator]  of  the  estate 
of  A.  B.  deceased,  complains  and  alleges: 

I.  That  on  the day  of ,  18..,  the  defendant  was 

a  corporation  duly  organized  by  [or  under]  the  laws  of  this  state 
and  was  a  common  carrier  of  passengers  for  hire,  by  railroad, 
between and  

II.  That  on  that  day  said  defendant  received  one  A.  B.  into 
its  cars,  for  the  purpose  of  conveying  him  therein  as  a  passenger 

from to [for dollars  paid  to  them 

by  said  A.  B.] 

1  Collier  V.  Steinhart,  51  Gal.  116.  spe  MoGatrick  v.  "Wason,  4  Ohio  St. 

«  Hnllower  v.  Henley,  6  ChI.  209.  5R9;  Hayden  v.  Smithville  Mig.  Co., 

»  Wright  V.  N.  Y.  Central  R.  R.  Co.,  29  Conn.  558;     WilliHm  v.  Clough,  3 

25  N.  Y.  562;  Treadwell  v.  Mavor  of  Hurlst.  &  N.  258;  Gr.ffiihs  v.  Gidlow, 

New    York,   1  Daly,   123;   Kunz  v.  Id.  648;  Dvnen  v.  Leach,  40  Eng.  L. 

Stuart,  Id.  431.  &  E.  491 ;  Skipp  v.  Eastern  Counties 

*  Warner  v.  Erie   Railway  Co.,  39  Railway  Co.,    9  Ex.    223;  Story  on 

N.  Y.  468;   see  Cal.  Civil  Code,  sees.  Agency,  6th  ed.,  sec.  453,  and  notes; 

1969-1971,  inclusive.  Hallower  v.  Henley,  6  Cal.  209, 

»  McGlynn  v.  Brodie,  31  Cal.  878  j 


670  FORMS  OF  COMPLAINTS.  §  1842". 

III.  That  while  he  was  such  passenger,  at ,  a  station 

on  the  line  of  the  said  railroad,  by  and  through  the  carelessness 
of  the  defendant  and  its  servants,  a  collision  occurred  by  which 
[the  cars  of  said  railroad  were  thrown  from  the  track,  and 
the  car  in  which  the  said  A.  B.  then  was  was  precipitated  down  an 
embankment,  and  the  said  A.  B.  was  thereby  killed,  or  as  the 
case  ma.y  bej. 

IV.  That  on  the day  of ,  18...,  letters  of  admin- 
istration upon  the  estate  of  the  said  A.  B.  were  duly  issued  by 

the  probate  court  of  the  county  of to  the  plaintiff,  by 

which  he  was  appointed  administrator  of  all  the  goods  and 
credits  belonging  to  the  said  A.  B.  at  the  time  of  his  death,  and 
he  thereupon  was  qualified  and  entered  upon  his  duties  of  such 
administration. 

V.  That  by  reason  of  the  premises  the  plaintiff,  as  such  exec- 
utor [or  administrator],  hath  sustained  damage  in  the  sum  of 
dollars. 

[D  KM  AND  OF  JiroaMKNT.] 

§  1842.  By  Heirs,  against  Railroad,  for  Injuries  to 
Employee  Causing  Death,  Resulting  from  Defective 
JMEachinery. 

Form  No.  461, 

[TiTLW.] 

The  plaintiffs  complain,  and  allege : 

I.  That  the  plaintiff,  Mary  Doe,  is  the  widow  of  John  Doe, 
deceased ;  that  said  plaintiff  and  said  deceased  intermarried  on 
the day  of ,  18... 

II.  That  the  plaintiff,  James  Doe,  is  the  only  child  of  said 
John  Doe,  deceased;  that  the  plaintiff,  James  Doe,  is  an  infant, 

less  than years  of  age;  that  before  the   commencement 

of  this  action  said  Mary  Doe,  his  mother,   was  by  an  order  of 

the  superior  court  of county,  duly  made  and  given, 

appointed  guardian  ad  litem  of  said  infant,  for  the  purpose  of 
appearing  for  him  in  this  action. 

III.  [Allege  defendant's  corporate  existence  and  business,  as 
inform  No. '469.] 

IV.  That  on  or  about  the  day  of  ,....,  18...,  said 

defendant  was  the  owner  of,  and   engaged  in  running  and  oper. 

ating  a  railroad  and  train  of  cars  in  the  county  of   , 

state  of 

V.  That  on  said  day,  and  at  the  time  of  the  injuries  hereinafter 
mentioned,  said  John  Doe,  deceased,  was  employed  and  hired  by 
the  defendant  as  a  brakeman  on  said  train,  and  was  tlien  and 
there  acting  as  and  discharging  the  duties  of  such  brakeman. 


§   1845.    PERSONAL  INJUUY  CAUSED  BT  NEGLIGENCE.  671 

VI.  That  at  the  time  aforesaid  one  of  the  brake  wheels  and 
brake  micliinery  on  said  train,  which  said  John  Doe,  as  such 
brakeman,  was  required  to  operate,  was  imperfectly  constructed, 
defective,  an  I  unsafe ;  that  said  imperfection,  defectiveness,  in- 
adequacy, and  unsafeness  could  have  been  by  said  defendant 
discovered  and  known  by  the  use  and  exercise  by  them  of  or- 
dinary care  and  diligence,  and  were  at  the  time  aforesaid  known 
to  said  defendant;  but  the  same  were  unknown  to  the  said 
John  Doe. 

VII.  That  at  the  time  aforesaid,  and  while  said  John  Doe 
was  employed  and  engao^ed  in  the  duties  and  occupation  of 
brakeman,  as  aforesaid,  said  brake  wheel  and  brake  machinery, 
by  reason  of  the  imperfi'CLion,  defectiveness,  inadequacy,  and 
unsafeness  thereof,  broke  and  gave  way,  without  any  negligence 
or  fault  of  said  John  Doe,  by  reason  wlw^reof  said  Jolm  Doe 
was  cast  upon  the  ground,  and  there  crushed  and  killed  by  said 
train. 

VIII.  That  said  plaintiffs  were  wholly  dependent  upon  said 
John  Doe  for  subsistence  and  support,  and  by  reason  of  his 
death  are  left  utterly  helpless  and  destitute,  and  are  damaged 
in  the  sum  of dollars. 

[Dkmand  of  Jttdgment.] 

§  1843.  Conflict  of  Laws — An  administrator  appointed  in 
one  state  can  not  maintain  an  action  there,  on  the  statute  of 
another  state,  which  gives  to  the  personal  representatives  of  a 
person  killed  by  wrongful  act,  neglect,  or  default,  a  right  to 
maintain  an  action  for  damages  in  respect  thereof,  notwith- 
standing the  death,  for  the  benefit  of  the  widow  or  next  of  kin, 
again^>t  the  party  that  would  have  been  liable  if  death  had  not 
ensued.^ 

§  1844.  Damages. — Damages  ensuing  from  bodily  pain 
need  not  be  alleged  specially  in  the  complaint.^  But  funeral 
expenses  are  not  recoverable,  except  as  special  damages,  if  re- 
coverable at  all,  and  must  be  specially  pleaded. ^ 

§  1845.  Liability  for  CAUsing  Death. — When  the  death 
of  a  person,  not  being  a  minor,  is  caused  by  the  wrongful  act  or 
neglect  of  another,  his  heirs  or  personal  representatives  may 
maintain  an  action  for  damages  against  the  person  causing  the 

•  Richxrrlson  v.  New  York  Cent.  R.  death  of  a  woman  havinjj   children, 

R.  Co.,  98  Mass.  85.  see  Tilley  v.  Hudson  River  R  R.  Co., 

«  Curtiss  V,  R.  Chester  and  Syra*  o^e  29  N.  Y.  252;  S.  C,  24   Id.  471 ;  Mc- 

R  R.  Co..    20  Barb.  282;  affirmed  18  Iiitvre  v.  N.  Y.  Cent.  R  R.   Co.,  43 

N.  Y  (4  Smith),  .=>34.  Barb.  532.     As  to  the  rule   for  plead- 

'  Gay   V.  Winter,  84  Cal.  153.     As  ins;  special  damages,  see    a/Ue,    sec 

to  measure  ot  damages  in  case  of  the  826. 


672  FOUMS  OF  COMPLAINTS.  §   1846. 

death ;  or  if  such  person  be  employed  by  another  person  who  is 
responsible  for  his  conduct,  then  also  aj^uinst  such  other  person. 
In  every  action  under  this  and  the  preceding  section,  such  dam- 
ages may  be  given  as  under  all  the  circumstances  of  the  case  may 
be  just.^  In  the  case  of  a  minor,  the  father,  or  where  he  is  dead 
or  has  deserted  his  family,  the  mother,  or  the  guardian  of  a  ward 
may  bring  the  action. ^ 

§  1846.  Limitation  of  Action. — In  California,  every  action 
for  the  death  of  a  i)erson  by  wrongful  act  shall  be  commenced 
within  two  years  after  the  death  of  such  deceased  person. ^ 

§  1847.  Negligence. — Where  the  complaint  alleged  that  a  car 
of  the  defendant,  in  charge  of  their  servai.t  and  agent,  was  wrong- 
fully driven  over  a  child,  whereby,  etc.,  and  that  the  defendants, 
by  negligence  of  themselves  and  their  agents,  ran  over  the  child 
and  caused  her  death,  it  was  held  th:it  evidence  was  admissible 
of  any  facts  of  negligence  on  the  part  of  the  defendants  in  the 
construction  of  the  cars,  which  would  have  aided  in  causing  such 
injury."* 

§  1848.  Parties  Plaintiff. — A  father,  or  in  case  of  his  death 
or  desertion  of  his  family,  the  mother,  may  maintain  an  action  for 
the  injury  or  death  of  a  child;  and  so  may  a  guardian  for  the  in- 
jury or  death  of  his  ward.^  A  parent  may  recover  the  expenses 
of  nursing  and  healing  a  minor  child,  even  though  the  child  be  so 
young  that  there  is  no  loss  of  service.'  An  action  may  be  main- 
tained by  a  father  as  administrator  of  an  unmarried  infant  son, 
and  it  is  not  indispensable  that  deceased  should  leave  a  widow  and 
next  of  kin.'''  A  husband  can  not  maintain  an  action  for  the  in- 
stantaneous killing  of  his  wife  through  the  negligence  of  defend- 
ant. The  well  settled  common-law  rule  that  no  damages  can  be 
recovered  by  action  for  injuries  resulting  in  immediate  death  ap- 
plies to  actions  brought  by  a  husband  for  injury  to  his  wife. 
The  loss  of  society  and  assistance  does  not  alter  the  case ;  and 
the  New  York  statute  of  1847  has  not  extended  the  remedy  to 
such  an  injury.^  An  action  in  Pennsylvania  against  a  railroad 
company  for  negligence  in  causing  the  death  of  a  father,  is 
properl}'  brought  in  the  name  of  all  the  children.  The  recovery 
is  for  the  benefit  of  all,  the  amount  to  be  distributed  as  in  case  of 
intestacy.^ 

»  Cal.  Code  C.  P.,  sec.  877.  '  McMahon  v.  Mayor  of  N.  T.,  33  N. 

«  Id.,  sec.  376.  T.  642. 

»  Id.,  sec.  339.  sub.  3.  8  (jreen  v.  Hudson  River  R.  R.  Co., 

*  Oldfield  V.  N.  Y.   and  Harlem  R.  2  Keves,  294;  affirming  JS  Bath.  9. 
P.  Co.,  8  E.  D.  Smith,  103.  »  North  Penn.  R.  R.  Co.  v.  Robiii- 

»(^^1.  Cod.'  C.  P.,  sec.  376.  son,  41  Penn.  St.  176. 

•  Sj'kes  V.  Lawier.  49  Cal.  236. 


§   1852.    PERSONAL  INJURY  CAUSED  BY  NEGLIGENCE.  673 

§  1849.  Parties  Defendant. — In  New  York,  a  passenger  in 
a  vehicle  or  railroad  car,  injured  by  its  collision  with  another 
vehicle  or  car,  resulting  from  the  concurrent  negligence  of  the 
owners  of  such  vehicles  or  cars,  or  their  employees,  may  main- 
tain a  joint  action  against  both.^ 

§  1850.  Personal  Representatives. — Every  action  for  the 
death  of  a  person,  caused  by  the  wrongful  act,  neglect,  or  default 
of  a  person  or  corporation,  shall  be  brought  by  and  in  the 
names  of  the  personal  representatives  of  such  deceased  person. ^ 
The  provision  of  the  Louisiana  statute,  that  the  cause  of  action 
for  the  wrongful  death  of  a  person  shall  survive  to  the  personal 
representatives  for  the  space  of  one  year  from  the  death,  is  a 
legal  subrogation,  in  favor  of  the  persons  designated  to  the  right 
of  action  of  the  deceased ;  and  in  case  of  a  suit  under  that 
subrogation,  the  plaintiff  should  allege  that  his  cause  of 
action  was  derived  from  deceased  under  the  statute,  and  a 
neglect  to  do  this  will  be  fatal. ^ 

§  1851.  Special  Damage. — In  an  action  for  death  by  the 
wrongful  act  of  a  person,  it  is  not  necessary  to  allege  or  prove 
special  damapje.* 

§  1852.  What  must  be  Shown. — To  maintain  an  action 
for  causing  by  wrongful  acts  the  death  of  or  injury  to  a  person 
two  things  must  be  shown:  1.  An  obstruction  in  the  road 
by  the  fault  of  the  defendant ;  2.  No  want  of  ordinary  care  on 
the  part  of  the  plaintiff  or  party  injured.  The  gravamen  of  the 
action  is  the  negligence  of  the  defendant,  and  plaintiff  can 
not  recover  where  it  appears  that  the  negligence  of  the  de- 
ceased or  person  injured  contributed  in  any  degree  to  the  death 
or  injury  sustained.^  But  in  cases  where  the  negligence  of  the 
defendants  is  affirmatively  shown,  and  there  is  no  proof  of  the 
conduct  of  the  deceased  or  person  injured,  the  jury  are  at 
liberty  to  infer  ordinary  care  and  diligence  on  his  part,  taking 
into  consideration  his  character  and  habits  as  proved,  and  the 
natural  instinct  of  self-preservation.^  In  such  actions,  if  the 
plaintiff  makes  a  case  which  does  not  charge  the  deceased  or 
the  person  injured  with  negligence,  the  case  should  be  permit- 
ted to  go  to  the  jury,  under  appropriate  instructions."'' 

^Chapmnn  v.   New    Haven    R.  R.  •  Earhart  v.  Ne.  Orleans  etc.  R.  B. 

Co..  19  N.  Y".  3n ;  Colegrove  v.  N.  Y.  Co.,  17  La.  Ann.  243, 

&  N.     H.  K    R.    Co.,   20    Id.     492;  4  Keller  v.   New  York  Cent.  R,  B. 

Wehsterv.  H.  R.R.  R.  Co.,38Id.2«0;  Co.,  24  H-w.  Pr.  172;    Mclr.t.vre    v. 

see  dictum  contra  in   Brown  v.  N.  Y.  New  York  Cent.  R.  R.  Co.,  43  BarU 

Cent.   K.  Co.,  32  Id.  597 ;  Moonev  v.  632. 

Hu  ison  Riv.  r  R.  li.  Co.,  5  Rob.  648.  »  Gay  v.  Winter,  84  Cal.  153. 

*£>ee  notes,  a/»^e.  'iJ.                                           ^  Idu 
EsTKK,  Vol. I — 43 


674  FORMS  OP  COMPLAINTS.  §   1853. 

§  1853.  Widow  and  Next  of  Kin.— It  was  held  in  the 
superior  court  of  New  York  that  a  complaint  of  this  kind  must 
expressly  allege  that  there  is  a  widow,  or  next  of  kin,  giving 
their  names,  and  alleging  that  they  had  sustained  pecuniary  in- 
jury.^ But  the  doctrine  of  this  case  is  entirely  inconsistent 
with  the  later  cases.^ 

§  1854.  Against  a  Municipal  Corporation,  for  Injuries 
Caused  by  Leaving  the  Street  in  an  Insecure  State. 

Form  No.  462. 

[TiTLB.] 

I     The  plaintiff  complains,  and  alleges : 

I.  That  the  defendant  is  a  municipal  corporation,  duly  organ- 
ized under  the  laws  of  this  state. 

II.  That,  among  other  things,  it  is,  by  its  charter,  made  its 
duty  to  keep  the  streets  in  said  city  in  good  order,  and  at  all 
times  properly  to  protect  any  excavations  made  in  said  streets, 
by  placing  lights  and  signals  thereat  to  indicate  danger. 

III.  That  a  certain  street  in  said  city,  known  as , 

was  and  is  a  common  thoroughfare,  and  used  by  the  citizens 
thereof  and  others ;  and  that  the  duty  of  said  defendant  as  to 
said  street  was,  and  became  at  the  time  hereinafter  mentioned,  a 
matter  of  public  and  general  concern. 

IV.  That  on  or  about  the day  of  ,  18...,  a  deep 

and  dangerous  excavation  [hole  or  trench]  was  dug  in  said 
street  [or  an  obstruction  was  placed  in  said  street,  and  negli- 
gently left  therein],  and  suffered  by  the  defendant,  during  a 
night  on  or  about  said  day,  to  remain  open,  exposed,  and  with- 
out proper  protection,  and  without  any  light  or  signal  to  indicate 
danger. 

V.  That  the  plaintiff  on  the  night  aforesaid  was  lawfully 
traveling  on  said  street,  and  was  wholly  unaware  of  danger,  and 
was  accidentally,  and  without  fault  or  negligence  on  his  part, 
precipitated  into  said  excavation  [hole  or  trench],  whereby  he 
received  great  bodily  injury,  and  was  made  sick  and  sore,  and 
was  thereby  kept  to  his  bed,  and  detained  from  business  for 
days,  and  was  in  consequence  thereof  compelled  to 

•Sftfford  T.  Drew,  3  Duer,  627.  necessary;  and  tliou2:h  the  whole  doc- 
*  Chapman  v.  Rothwell,  El.  Bl.  &  trine  of  Safford  v.  Drew  is  n<>t  over- 
El.  16H ;  Quin  v.  Moore,  15  N.  Y.  436 ;  ruled  in  terms,  }'et  it  is  in  effect,  and 
Oldfield  V.  New  York  and  Harlem  that  nominal  damages,  at  least,  may 
K.  R.,  14  Id.  316;  Dickens  v.  New  be  recovered  on  the  above  complaint, 
"York  Central  R.  R.,  28  Barb.  41 ;  with  liberty  to  prove  actual  damasje. 
Keller  v.  New  York  Central  R.  R.,  In  California,  however,  the  statute 
17  How.  Pr.  102.  The  first  of  these  especially  provides  fur  this  class  ol 
eases  expressly  decides  that  no  allega-  actions:  See  Cat.  Code  C.  P.,  sees, 
tion  of  damage  to  the  next  of  kin  is  37d,  877. 


§   1860.    PERSONAL  INJURY  CAUSED  BY  NEGLIGENCE.  675 

expend dollars   for    medical    attendance    and    nursin*, 

and  has  been  made  permanently  lame,  to  his  damage 

dollars. 

[Demand  of  Judgmbnt.] 

§1855.  CausiJ  of  Death. — Tue  responsibility  in  cases  of  a 
personal  injury  from  fallin:^  tlirou:^li  a  defective  sidewalk  is 
upon  him  who  has  the  coitrd  and  management  of  the  work.* 
1  §  1856.  Corporation,  Liability  of. — A  city  having  the 
power  and  duty  of  lighting  its  streets  is  liable  for  injuries  or 
death  caused  by  a  party's  falling  off  a  bridge,  opened  for  the 
passage  of  a  vessel,  in  consequence  of  its  being  insufficiently 
lighted.'  It  is  not  liable  for  negligance  of  a  member  of  paid  firo 
department.  3 

I  §  18-j7.  Defect  in  Higliways. — Where  plaintiff  was  injured 
owing  to  a  defect  in  a  higliway,  but  woald  not  have  been  if  the 
horse  had  not  been  vicious — he  had  never  driven  the  horse  be- 
fore, and  did  not  know  of  its  viciousuess — it  was  held  that 
plaintiff  could  recover  substantial  dam  iges.'* 

§  18)3.  Dr07er,  Lia'oilifcy  of. — The  law  governing  the  lia- 
bility of  persons  for  driving  cattle  through  the  streets  of  a  city, 
for  damages  caused  by  injuring  a  parson  lawfully  in  the  street, 
without  any  fault  on  his  part,  is  the  same  as  that  by  which  the 
carriers  of  passengers  are  governed.* 

§  1859.  Dag,  Opensd,  aadMads. — In  a  suit  caused  by  a 
person's  falling  into  an  area  in  a  public  sidewalk,  a  declaratica 
charging  that  the  defen  lant  "dug,  opened,  and  made"  the 
area,  is  sustained  by  proof  that  he  formed  it  partially  by  exca- 
vation, and  partially  by  raising  walls. ^ 

§  1860.  Ponniatioa  of  Action. — The  foundation  of  this 
action  is  tUa  personal  tort  of  the  defendant,  and  not  of  hi 
testators.  The  defect  in  the  street  from  which  the  injury  re- 
sulted to  plaintiff  is  not  alleged  to  have  existed  ant.Tior  to  the 
death  of  such  testator;  hence  no  obligation  was  incurred  by  the 
testator  in  his  life-time  in  respect  thereto,  which  could  serve  its 
a  bvsis  for  a  valid  claim  against  his  estate,  or  a  right  of  action 
against  the  administrator  of  his  estate  as  such.' 

»  Bo'Wfillv.  L"»ird.  8Ca'.  4')9:  Fan-     City    of    Brooklyn,    41    Barh.    881; 
|oy  V.  ShhI«3,  29  [d.  2ii;  followed  m      Davenport  v.  R  ickman,  10  Bisw.   20. 


fe 


u  Prutr.    V.    Lick,  3S  Id.   691;   see  'Howard  v.  Sau  Francisco,  51  C»l. 

also  El  ttce  V.  Jihns.  Id.  8.  52. 

'Cuicigo  V.   Powers   42  111.    Ifil;  *  DaniVls  V,  Tt»wn  of  Saybrook,  84 

gee  as  i<>  sidwwalks.  Bloomington,  Uity  Conn.  877. 

of,  V.  Bay,  Id.    503.     As  to  th^)    Ma-  »  Fi.k'-n  v.  Jonpg,  23  Ca1.618. 

bility  oi  o<>rnor>\tion8  for  neijjlect    to  •  Ki'ihins  v.  Cdicago  City,  4  WalL 

have  proper  precautions  trtkf'i  for  the  U.  S  6i7. 

saleiy  uf  the  public,  see  Graut  v.  ^  Eusiace  V.  Jahns,  88  Cal.  3. 


676  FORMS  OP  COIIPLAINTS.  S   1861. 

§1861.  Non-repair  of  PremiEoa. —  A  complaint  a  ainst 
the  ovvuer  of  premises  leased  to  a  tliiid  person,  to  recover  dam- 
ages sustained  by  plaintiff  by  the  falling  of  a  part  of  the  build- 
ing through  want  of  repairs,  is  bad  on  demurrer,  unless  it  states 
facts  from  which  the  court  can  say  that  the  owner  was  bound  to 
keep  the  premises  in  repair.  A  mere  general  allegation  that  de- 
fendant was  bound  to  keep  the  premises  in  repair  is  insufficient.^ 

§  1862.  Respondeat  Superior. — The  responsibility,  in 
cases  of  personal  injuries,  is  upon  him  who  has  the  control 
and  management  of  the  work,  an  1  the  relation  of  respondeat 
superior  has  no  application  where  the  relation  of  master  and 
servant  does  not  exist.^  Where  there  is  no  power  of  selection 
or  direction,  there  can  be  no  superior,  and  where  a  man  is  em- 
ployed to  do  the  work  with  his  own  means  and  by  his  own 
servant,  he  has  the  power  of  selection  and  direction,  ani  he, 
and  not  the  person  for  whom  the  work  is  principally  doue,  is 
the  superior  3 

§  1863.  Street  Contractor — Liabilities. — The  responsi- 
bility in  cases  of  repairs  in  public  streets  made  by  a  contractor 
rests  upon  him  who  has  control  and  management  of  the  work. 
The  doctrine  of  respondeat  superior  has  no  application  where 
the  relation  of  master  and  servant  does  not  exist,  but  where  a 
man  is  employed  to  do  the  work  with  his  own  means  and  by  his 
own  servants,  he  and  not  the  person  for  whom  the  work  is 
being  primarily  done  is  the  superior.'*  The  law  does  not  im- 
pose upon  the  owner  of  a  lot  fronting  on  a  street  of  an  incor- 
porated city,  the  duty  to  repair  a  defect  in  the  portion  of  the 
public  street  upon  which  his  lot  abuts  or  fronts. ^  The  only 
duty  imposed  upon  him  is  the  payment  of  the  assessment  which 
shall  be  lawfully  imposed  upon  his  lots  or  lands.  So  the  owner 
of  property  is  not  liable  for  the  torts  of  servants  employed  by 
the  contractor,^  nor  for  omission  or  negligence  of  contractor 
so  employed.'  But  the  principal  contractor  is  liable  for  negli- 
gence of  subcontractors   and   their   servants.*    So    of  a  party 

1  Caspy  V.  Mann,  5  Abb.  Pr.  91  ;  S.  Seales,  29 Td.  243 ;  and  followed  in  tbe 

C,  sub  no)n.  Corey  v.  Mann,  14  Uow.  chs^s  of  Du  Pratt  v.  Lick,  88  Id.  791  ; 

Pr.   16::,   Bee   Brown  v.  Harmon,   21  O' Hale  v.  Sacramento,  48  Id.  212,  and 

Barb.  508.  Krau.se  v.  yacramento,  Id.  221. 

«  Frt!ij..y  V.  Seales  29  Cal.  243;  the  »  Eustace  v.  Jahns,  88  Cal.  8. 

doctrine    approved    in  Du  Prait    v.  "Van  Wert  v.  City  of  Brooklyn,  28 

Lick,  88  Id,  691.  How.   Pr.  451 ;  O'Uourke  v.   H"rt,  7 

•Fanj'vv.    Seales,    29    Cal.    243;  Bosw.  51 1 ;  S'hular  v.  Hudson  Kiver 

cited  ai  J  fill  owed  in  Du    Pratt   v.  R.  R  Co.,  8H  Barb.  653. 

Lick.  38  [d.  691.  i  Fi-h  v.  D.-dge.  38  Barb.  IBS ;  Ben- 

*  Roswell  V.  Lnird,  8  Cal.  4f»9.     The  edict  v    Mariin,  36  Id.  2H8. 

doctrine    recugmzed    ia    f  anjoy    V.  *  creed  v.  Uartmat,  2y  N.  Y.  691. 


§   18G6.    PERSONAL  INJURY  CAUSED  BY  NEGLIGENCE.  677 

obtaining  authority  to  do  work  in  a  public  street.^  But  public 
officers  are  not  witliin  the  rule  of  erai)If)yer  and  employee,  and 
are  not  responsible  for  persons  employed  under  them.^  Where 
a  parly  was  injured  by  falling  at  night  into  an  excavation  made 
in  grading  the  street  of  a  city,  under  a  citv  contract,  given  out 
in  o!)edience  to  the  law,  owin^  to  the  failure  to  put  lights  or 
guards  about  the  place,  the  contractor  and  not  the  city  is  liable.^ 
§  1864.  For  Injuries  Caused  by  Rubbish  in  the  Street, 
Whereby  Fiaintiff  was  Thrown  from  his  Carriage. 

Form  No.  463. 
[Title.] 
The  plaintiff  complains,  and  alleges : 

I.  That  the  defendant,  on  or  about  the day  of , 

18...,  wrongfully  placed  large  quantities  of  lumber  and  bricks 

in  the  public  highway  [known  as  street],  in , 

and  nf^gligently  left  the  same  therein,  obstructing  the  highway 
during  the  night-time,  and  without  proper  protection  or  notice  to 
citizens  and  travelers  against  accidents. 

II.  That  by  reason  of  said  negligence  and  improper  conduct 
of  the  defendant,  in  the  night-time  of  that  day,  the  carriage  of 
the  plaintiff,  with  the  plaintiff  therein,  then  passing  through 
said  street,  was  accidentally  driven  a:;ainst  the  said  lumber  and 
earth,    and  was  thereby  overturned;    by  means  whereof   the 

plaintiff  was  bruised  and  wounded,   and  was  for days  pte- 

vented  from  attending  to   his  business,  and  was   compelled  to 

expend,  and  did  expend dollars  for  medical  attendance  and 

nursing,  to  his  damage   dollars. 

[Dkmand  of  Judgmbnt.] 
■  §  1865.  Mutual  Negligence.— Where  a  child  was  killed 
by  the  fall  of  a  counter  on  which  he  was  climbing,  and  which 
had  been  left  in  the  street  of  a  city  for  two  or  three  weeks,  the 
child  being  six  years  old,  and  at  the  time  of  his  death  playing 
unattended  six  blocks  from  home,  it  was  held  that  the  city  was 
no  more  negligent  than  the  parents  of  the  child,  and  was  not 
liable.'* 

§  18C6.  For  Injuries  Caused  by  Leaving  a  Hatchway 
Open. 

Form  No,  464. 
[Txri,!!.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  the  defendant  wag 

*  McCftmus  V.  Citizens'   Gas  Light  'JHrnesv.  San  Francisco,  City  of, 

Co.,  40  Barb.  8«<0.  6  ChI.  528. 

»  Murphy  v.  Commissioneri  of  Im-  *  Chicago  V.  Starr,  42  III.  174. 
niigraliuu,  ".7  How.  Pr.  41. 


678  FOUMs  OF  CUiU'LAlNTS.  §    1867. 

the  occupaTit  of  the  [store  Xo.  ..,  street],  and  had  pos- 
session and  control  of  the  liaicliway  luTiinafter  mentioned. 

II.  Tliat  on  the  said  day  tiie  plaintiff  was  in  the  said  [store  or 
building],  by  permission  of  the  defendant,  for  the  purpose  of 
transacting  business  with  him  [or  in  the  discharge  of  liis  duties 
as — state  what]. 

III.  That  the  hatchway  on  the  [second]  story  of  the  said  build- 
ing was  then,  by  the  negligence  of  the  defendant,  left  open,  and 
not  in  any  manner  protected.  ; 

IV.  That  in  consequence  thereof  the  plaintiff  fell  through  the 
said  hatchway,  and  was  much  injured  [state  special  damage,  if 
any,  as],  and  was  confined  to  his  bed  and  detained  from  business 
for days,  was  compelled  to  expend dollars  for  medi- 
cal attendance  and  nursing,  and  has  been  made  permanently  lame,  ^ 
to  his  damage   dollars. 

[Demand  of  Judgment.] 

§  1867.    The  Same— Another  Form. 

FoJtn  No.  465. 
[TiTLB.] 

The  plaintiff  complains,  and  alleges: 

I.  That   on  the  day  of ,  18..,   at ,  the 

defendant  was  the  owner,  and  had  possession  and  costrol  of  a 
certain  building  and  premises  [describe  them] ,  with  the  appur- 
ten'ances  thereto  belonging,  which  building  was  then  occupied 
by  him  as  [designate  the  uses  of  a  building,  if  a  public  resort]. 

II.  That  said  building  was  negligently  and  carelessly  built, 
inasmuch  as  there  was  in  the  public  hall  in  the  third  story  of 
the  same,  at  the  time  of  its  erection  and  leasing  by  the  defend- 
ant, as  well  as  at  the  time  hereinbefore  mentioned,  an  unguarded 
hatchway,  opening  into  the  second  story. 

III.  That  the  defendant,  well  knowing  the  premises,  and  while 
the  owner  and  occupant  [or  while  the  occupant]  of  said  build- 
ing, did  on  the  day  and  year  aforesaid,  negligently  leave  the 
same  open  and  unprotected,  by  means  whereof  the  plaintiff,  who 
was  then  lawfully  in  said  building,  and  in  pursuit  of  his  business 
[or  otherwise  show  for  what  purpose,  and  by  what  right,  the 
plaintiff  was  there],  then  and  there  necessarily  and  carefully 
passing  along  said  hall,  fell  through  said  hatchway. 

IV.  That  in  consequence  thereof  the  plaintiff  was  greatly 
injured,  and  became  sick  and  lame,  and  so  remained  for  a  long 

time  [or  so  still  remains] ,  and  was  during  the  space  of , 

prevented  from  attending  to  his   business  as  ,  and  was 

compelled    to    expend  dollars  for    medical   attendance 


§   1870.     PERSONAL  INJURY  CAUSED  BY  NEGLIGENCE.  679 

[or  otherwise  state  injuries  to  plaintiff],  to  his  damage 

dollars. 

[Dkmavd  ok  JimaMENT  ] 

§  1868,    For  Injuries  Caused  by  Vicious  Dog. 

Fur7n  No.  466. 
[Titlb] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18...,  at ,  the 

defendant  was  the  keeper  [or  owner]  of  a  certain  vicious  dog, 
which  was  accustomed  to  bite  mankind. 

II.  That  the  said  defendant,  well  knowing  the  premises,  did 
wrongfully  and  injuriously  kf^ep  and  harbor  the  said  vicious  dog, 
and  wrongfully  and  negligenily  suffered  such  dog  to  go  at  large, 
without  being  properly  guarded  or  confined. 

III.  That  while  so  kept  as  aforesaid,  the  said  dog  did  bite 
and  greatly  wound  this  plaintiff  [state  the  particulars],  wliereby 
this  plaintiff  became  sick  and  sore  and  lame,  and  so  continued 
for  the  space  of  [six  months]  tlience  next  following;  and  was 

obliged  to  pay,  and  did   ex[)end  dollars  for  medical 

attendance  consequent  thereon,  and  was  prevented  during  all 
said  months  of  sickness  from  attending  to  his  lawful  affairs,  to 
his  damage dollars. 

[Demand  of  Judgment.] 

§  1869.  Averments  Essential. — The  averment  that  he  was 
of  a  mischievous  or  ferocious  nature  is  simply  an  averment  that 
the  dog  would  bite  men,  that  he  was  accustomed  to  bite,  and 
this  is  best  evidenced  by  the  fact  that  he  did  bite  plaintiff. 
There  are  three  necessary  averments:  1.  That  the  dog  would  bite 
mankind;  2.  That  the  owner  or  keeper  knew  it;  and,  3.  That  he 
did  bite  plaintiff.  When  all  this  is  proved,  it  matters  not  how 
carefully  the  dog  was  kept;  the  owner  or  keeper  has  no  right  to 
keep  such  a  dog  at  all.^  Chitty  advises  counts  averring  tliat  the 
dog  was  of  a  ferocious  and  mischievous  nature,  and  also  for  not 
keeping  the  dog  properly  secured  or  fed,  as  the  facts  may  be.' 

§  1870.  Mischievous  Animals. — The  gist  of  an  action 
for  keeping  a  mischievous  animal,  at  common  law,  is  the  keep- 
ing of  the  animal  after  knowledge  of  its  mischievous  propensi- 
ties. And  a  declaration  is  sufficient  which  alleges  the  ferocity 
of  the  animal,  and  the  knowledge  of  the  defendant,  without  any 
negligence  or  want  of  care.^ 

»  M'Caskill  v.  Elliot,  5  Strobh.  196;  »  2  Chit.  PI.  597. 

but  the  cases  of  Jones  v.  Perry,  2  E<p.  •  Popptewell  v.  Pierce,  KyCush.  509, 

48J,  and  Cockerham  v.  Nixon,  11  Ired.  and  cases  there  cited. 
2(39,  seem  to  make  a  distinction. 


680  FORMS  OF  COMPLAINTS.  §   1871. 

§  1871.  Ownership. — It  is  not  necessary,  in  an  action  for 
damages  sustained  by  the  bite  of  a  dog,  for  the  plaintiff  to 
prove  that  the  defendant  owned  the  dog.  It  is  sutBcient  on 
this  point  for  the  plaintiff  to  prove  that  the  defendant  kept  the 
dog.i 

§  1872.     Scienter. — The  scienter  must  be  alleged  and  proved .^ 

§  1873.  Vicious  Horse. — Defendant  negligently  let  his 
horse  go  loose  and  unattended  in  the  street  of  a  city,  where  the 
horse  kicked  the  plaintiff ;  it  was  held  that  defendant  was  liable, 
without  proof  that  the  horse  was  vicious.^ 

§  1874.    Against  Physici?.n  for  Maltreatment. 

Fonn  No.  4^7. 
[Title] 

The  plaintiff  complains,  and  alleges : 

I.  That  the  defendant  is,  and   since   the   day   of 

,  18...,  has  been  a  physician,  and  that  the  plaintiff,  at 

,  in  the  month  of ,  18...,  employed  the  de- 
fendant as  such,  to  cure  him  of  a  malady  from  which  he  then 
suffered,  for  compensation  to  be  paid  therefor,  and  for  that 
purpose  the  defendant  undertook,  as  a  physician,  to  attend  and 
cure  the  plaintiff. 

II.  That  the  defendant  entered  upon  such  employment,  but 
did  not  use  due  and  proper  care  or  skill  in  endeavoring  to  cure 
the  plaintiff  of  the  said  malady,  in  this :  the  defendant  did  not 
[here  state  what  defendant  failed  to  do  that  he  should  have 
done,  or  what  he  did  that  he  should  not  have  done]. 

III.  That  by  reason  of  the  several  premises,  the  plaintiff  was 
injured  in  his  health  and  constitution,  suffered  great  pain,  was 
weakened  in  body,  and  was  obliged  to  and  did  expend  the  sum 
of dollars,  in  endeavoring  to  be  cured  of  the  said  sick- 
ness, which  was  prolonged  and  increased  by  the  said  unskillful 
and  improper  conduct  of  the  defendant,  to  the  damage  of  the 
plaintiff dollars. 

[Demaxd  op  JimaMENT.] 

§  1875.  Implied  Promise. — The  employment  of  a  physician 
in  this  country  raises  an  implied  promise  to  pa}'  for  his  services. 
The  plaintiff  in  an  action  for  malpractice  may  allege  that  de- 
fendant was  a  physician,  and  as  such  was  called  on  by  the 
plaintiff,   and  undertook  as  such  to  administer  medicines,  etc. 

>  Wilkinson  v.  Parrott,  32  Cnl.  102;  Judge  v.  Cox,  1   StarkiP,  2«5:  Blnok- 

and  see  Ficken  v.  Jones,  28  Cal.  618.  man    v.    Simmons.  3    C.  &    P.  138; 

»1  iVl.   &  S.  2:;8;   Smith   v.  Pelah,  Marsh  V.  Jones,   21    Vt.   378;    Vau 

2  Stranfije,  l.!64;  Vrooman  v.  Lawyer,  L>^uven  v.  Lyke,  1  Comst.  (N.  y.)516. 

13  Johns.  339;  Jones  v.  Perry,  2  E«!p.  'Dickson   v.  Mc(  oy,  ;S9  N.  Y   400; 

A82;  Beck  v.  Dyson,  4  Camp.  198;  8oe  also  Morris  v.  i^ohier.  41  Id.  42. 


§  1877.  VIOLATION  OP  PERSONAL  EIGHTS.  681 

This  ia  sufTicient  to  raise  a  duty  of  skill  and  care  on  his  part.* 
Evidence  of  reputed  skill  is  held  to  be  material. ^ 
§  1876.    Against  Surgeon,  for  Malpractice. 

Form  No.  4^8, 
[Title.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the day ,   18..,  the  plaintiff  by 

accident  broke  his  leg. 

II.  That  he  then  employed  the  defendant,  who  is  a  surgeon, 
as  such  surgeon,  for  reasonable  reward  to  be  paid  therefor,  to 
set  and  heal  the  same. 

III.  That  the  defendant  so  negligently  and  unskillfully  con- 
ducted himself,  in  attempting  to  set  said  leg  of  the  plaintiff,  that 
[here  state  the  consequences,  as,  inflammation  ensued,  and  the 
plaintiff  was  compelled  to  have  his  leg  amputated], 

IV.  That  by  reason  of   said  negligence  and  unskillfulness   the 

plaintiff  was  made   sick,  and  was   kept months   from 

attending  to  his  business  as  [engineer],  and  was  compelled  to  pay 
and  did  pay dollars  expense  for  nursing,  and  is  per- 
manently a  cripple;  to  his  damage  dollars. 

£D£MAND  Of   JUDaUUKX.] 


CHAPTER  VI. 

VIOLATION  OF  PERSONAL  RIGHTS. 

§  1877.  Against  Ofiicers  of  an  Election,  for  Refusing 
Plaintiff's  Vote, 

Form  No.  469* 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendants  were  the  inspectors  and  judges  of  an 
election  duly  held  at  ,  in  and  for  the pre- 
cinct, in  the  city  of ,  on  the day  of , 

18..,  for  the  purpose  of  electing  [state  what  officers],  and  being 
duly  appointed  and  qualified  as  such  inspectors  and  judges,  the 

defendants  had  the  polls  open  for  said  election  at  No 

street  [or  at  the  school-house]  in  said  town  [or  city]  be- 
tween the  hours  of  ......  and on  the  day  aforesaid. 

II.  That  the  plaintiff  then  was,  and  for  the  space  of 

months  had  been  a  citizen  of  the  state  of  ,  and  then 

•was,  and  for  the  space  of  days  had  been,  a  resident 

>  Peck  T.  Martin,  17  Ind.  116.  >  Carpenter  v.  Blake,  50  N.  Y.  696. 


682  FORMS  OF  COMPLAINTS.  §   1878. 

in  said  town  [or  ward,  or  otherwise,  according  to  the  statute], 
and  was  a  legal  elector  at  said  election  [or  that  the  plaintiff 
was  registered  in  the  grand  register  of  tlie  city  and   county  of 

,  and  was  enrolled  on  the  poll  lists  of  the  said 

precinct]. 

III.  That  as  such  elector,  the  plaintiff,  while  the  polls  were 
so  open,  duly  offered  to  the  defendants  hig  vote  or  ballot  for 
the  election  of  [insert  what  officers  he  offered  to  vote  for,  as 
sheriff,  etc.],  in  and  for  said  town,  and  requested  them  to  re- 
ceived the  same. 

IV.  That  the  defendants,  not  regarding  their  duty,  wrong- 
fully refused  to  receive  or  deposit  the  same,  although  they  and 
each  of  them  then  well  knew  he  was  a  qualified  voter,  whereby 
he  was  deprived  of  his  vote  at  said  election,  to  his  damage 

dollars. 

[Demand  op  Judgment.] 

§  1878.  Facts  must  be  Alleged. — In  an  action  for  refus- 
ing plaintiff  's  vote,  the  particular  facts  upon  which  plaintiff  'a 
right  to  vote  depends,  must  be  alleged.^ 

§  1879.     Malice. — The  averment  of  malice  is  unnecessary.' 

§  1880.    For  Criminal  Conversation. 

Form    No.  470. 
[Title] 

The  plaintiff  complains,  and  alleges: 

I.  That  A.  B.  is,  and  at  the  times  hereinafter  mentioned  was, 
the  wife  of  the  plaintiff. 

II.  That  on  or  about  the  day  of ,  18...   [the   day 

or  about  the  day  the  first  act  of  adultery  can  be  proved],  and  on 
other  days  after  that  day,  defendant,  wrongfully  contriving  and 
intending  to  injure  the  plaintiff,  and  to  deprive  him  of  the  com- 
fort, society,  aid,  and  assistance  of  his  wife  [forcibly  and  with- 
out the  consent  of  the  said  A.  B.],  wickedly,  willfully,  and 
maliciously  debauched  and  carnally  knew  the  said  A.  B.,  with- 
out the  privity  or  consent  of  the  plaintiff. 

III.  That  by  means  of  the  premises,  the  affection  which  the 
said  A.  B.  therefore  had  for  the  plaintiff  was  alienated  and 
destroyed,  and  the  plaintiff  was  deprived  of  the  comfort,  society, 
aid,  and  assistance  which  he  otherwise  would  have  had  from 
the  said  A.  B.,  and  has  suffered  great  distress  of  body  and  mind, 
to  his  great  damage dollars. 

[Demand  ov  Judgment.] 

*  Curry  V.  CaWiss,  87  Mo.  830.  v.  Hxpgood.   11  Mniq    S'lO;   Cip^n  v. 

•  Jeffiips  V.  Ankeny,  11  Ohio,  872;  Fosinr,  12  Pick.  485;  Osgood  v.  iJii.J- 
Tliacker  v.  Hawk,  id.  376;  Lincoln     ley,  7  Gr«enl.  411. 


§  1886.  VIOLATION  OP  PERSONAL  RIGHTS.  683 

§  18'S1.  Character  of  Action. — An  action  by  the  husband, 
for  crim.  con.,  is  an  action  for  injury  to  the  person.^ 

§  1882.  Contriving  and  Intending. — The  intention  is  ma- 
terial.^ 

§  1883.  Marriage. — In  an  action  for  criminal  conversation, 
the  pliiintiff  must  prove  an  actual  marriage. ^ 

§  1884.    For  Enticing  Awa/  Plaintiff's  Wife. 

Form  No.  471. 
[Titlk] 

The  plaintiff  complains,  and  alleges : 

I.  That  A.  B.  is,  and  at  the  times  hereinafter  mentioned  was, 
the  wife  of  the  plaintiff. 

II.  That  on  or  about  the day  of ,  18..,  while  the 

plaintiff    was    living   and   cohabiting^  with  and   supporting  her, 

at ,    and    while    they  were   living  together   happily  as 

man  and  wife,  the  defendant,  wrongfully  contriving  and  in- 
tentliiig  to  injure  the  plaintiff,  and  to  deprive  him  of  her  com- 
fort, society,  and  assistance,  maliciously  enticed   her  away  from 

the  plaintiff's  and   her  then  residence  in ,  to  a  separate 

residence  in    ,  and   has  ever  since    there    detained    and 

harbored  her,  against  the  consent  of  the  plaintiff. 

III.  Tliat  by  reason  of  the  premises  the  plaintiff  has  been 
and  still  is  wrongfully  deprived  by  the  defendant  of  the  com- 
fort society,  and  aid  of  his  said  wife,  and  has  suffered  great 
distress  of  body  and  mind  in  consequence  thereof,  to  his  dam- 
age   dollars. 

[Demand  of  Judomknt.]* 

§  1885.  Allegation  that  Defendant  Knew. — In  an  action 
for  debauching  a  wife  or  servant,  it  is  not  necessary  to  allege  or 
prove  that  the  defendant  knew  that  the  female  was  the  wife  or 
servant  of  the  plaintiff;  though  in  an  action  for  seducing  away 
or  harboring  a  wife  or  servant,  such  allegation  and  evidence 
are  necessary.* 

§  1886.    Debauching  a  Daughter. 

Form  M.  47S. 

[TiTLB.] 

The  plaintiff  complains,  and  alleges  t 

»1  Chitty  PI,  137;  2  Id.    265;    2  *  For  a  form  nearly  similflr,    see 

Kent,  129;  3  Black.  Com.  138;  Dela-  Scherpf  v.  Szadeczky,  1  Abb.  Pr.  366. 

mater  v.  Russell,  4  How.  Pr.  234;  S.  »  Fores  v.  Wilson,  Peake   N.  P.  C. 

C  2  Code  R.  147.  55;   Peake's  Law  of  Evidence,   134; 

'  Hutcheson  v.  Peck,  5  Johns.  196.  Winsmore  v.  Greenback,  Willes,  577; 

•Morris    v.   Miller,   4    Burr.  2057;  see  2  Chitty  on  Pleading,  642.  note  e; 

Peake's  Law  Ev.  300 ;  Phil,  on  Ev.,  see  Hermauce  v.  James,  82  How.  Pr. 

7th  ed.,  206;  Selw.  N.  P.  14,  16;  see  142. 
alBo  2  Chit.  PI.  643,  note  L 


68i  FORMS  OF  COMPLAINTS.  §   1887. 

I.  That  said  defendant,  unjustly  intending  to  injure  said 
plaintiff,  and   to  deprive  him  of  tlie  services  and  assistance  of 

the  daiigliter  and  servant  of  said  plaintiff,  did,  on  the  ..... 

day  of ,  18..,  and  on  divers  other  days  between  that 

day  and  the  commencement  of  this  action,  debauch  and  carnally 

know   the  said ,  then  and  there,    before  and    since, 

the  daughter   and   servant   of  said  plaintiff,   whereby   the    said 

became  pregnant  and  sick  with  child,  and  so  remained 

for  a  long  space  of  time,  to  wit,  for  the  space  of  nine  months, 
thence  next  following;  at  the  expiration  whereof  the  said 
was  delivered  of  the  child  with  which  she  was  preg- 
nant, as  aforesaid. 

II.  That  by  means  of  the  premises,  the  said ,  for 

a  long  space  of  time,  to  wit  [one  year]  was  unable  to  do  the 
needful   business   of  the   said  plaintiff,  he,  the  said  plaintiff,  so 

being  the  father  and  master  of  the  said  ,  and  the  said 

plaintiff  lost  the  services  of  the  said   during  all  that 

time ;    and  the  said  plaintiff  was  put  to  great  expense,  and  did 

pay  out  a  large  sum,  to  wit,  the  sum  of dollars,  in  and 

about  the  nursing   and  taking   care  of  the  said  ,  his 

daughter  and  servant,  and  in  and  about  the  delivery  of  said  child, 
to  his  damage  in  the  sum  of dollars. 

[Demand  of  Judgment.] 

§  1887.  Connivance. — The  connivance  of  the  father  in  the 
act  of  seduction  will  wholly  bar  his  action,  but  where  the  defense 
is  omitted  to  be  pleaded,  it  will  be  waived.^ 

§  1888.  Daugliter  Temporarily  Absent. — This  action  is 
maintainable,  though  the  daughter  be  temporarily  absent  at  the 
time  of  seduction. 2 

§  1889.  Debauching  and  Beating  a  Daughter. — A  pa- 
rent, in  that  character  merely,  can  not  support  an  action  for  de- 
bauching or  beating  his  daughter,  which  is  only  sustainable  in 
respect  to  the  supposed  loss  of  service,  some  slight  evidence  of 
which  must  in  general  be  adduced. ^ 

§  1890.  Distress  of  Body  and  Mind.— The  fact  that  the 
plaintiff  has  suffered  great  distress  of  body  and  mind  is  a  good 
ground  of  damages.^ 

§  1891.  Father,  Action  by. — A  father  may  maintain  an 
action  for  the  seduction  of  his  daughter,  under  twenty-one  years 
of  age,  although  she  was  not  living  with  him  at  the  time,  if  he 

iTravis  V.  B-irsjer,  24Barb.  614.  PI.  643.  note  9;    White  v.  Ncllis,  31 

«Lipev.  Eisenierd,  32   N.   Y.  229;  N.  Y.  405. 

gee  Gal.  Code  Civil  Pioc,  sec.  375.  *  Dain  v.  Wycoff,  7N.  Y.  191. 
«  5  East,  45 ;  6  T.  K.  800 ;  see  2  Chit. 

.1- 


§   1897.  VIOLATION  OF  PERSONAL  EIGHTS.  685 

has  not  by  his  own  act  destroyed  his  right  to  control  her  serv- 
ices.^ So  for  that  of  a  daughter  over  twenty-one,  and  not  liv- 
ing with  him,  if  he  thereby  loses  actual  services  due  to  him ; 
and  services  rendered  will  be  presumed  to  be  due  if  he  continues 
to  exercise  authority  over  her,  and  she  to  submit.^ 

§  1892.  Female  Seduced  can  not  Maintain  Action. — At 
common  law  the  female  seduced  can  not  maintain  an  action  for 
her  own  seduction.^  But  by  section  374,  California  code  civil 
procedure,  an  unmarried  female  may  maintain  the  action.'' 
Un'ler  a  similar  statute  in  Indiana  it  was  held  that  the  com- 
plaint must  allege  that  the  plaintiff  was  unmarried.*  A  seduc- 
tion, where  it  exists,  is  frequently  alleged  in  a  suit  for  breach 
of  promise  of  maiTiage  in  aggravation  of  damages,  but  not  as  a 
sei)arate  cause  of  action.  It  is  doubtful  if  breach  of  promise 
of  marriage  and  seduction  could  be  joined  as  distinct  causes  of 
action  even  under  a  statute  authorizing  the  femile  to  sue  for 
seduction,  as  the  one  arises  from  contract,  and  the  other  from 
tort. 

§  1893.  Full  Age. — A  father  may  maintain  an  action  for 
".eduction  of  his  daughter  who  resides  with  him,  and  performs 
domestic  services  in  return  for  uupport,  notwitlistanding  she  is 
of  full  age  and  that  no  express  ajn'cemcnt  exists  for  services.^ 

§  1894.  Gist  of  Action. — Ti  e  loss  of  service  is  the  gist  of 
the  action,  and  tlie  master  can  alone  sustain  the  action  If  the 
daughter  is  not  living  with  her  father,  he  can  not  sue  for  seduc- 
tion.' 

§  1895.  Minor. — As  regards  a  minor,  it  seems  that  one 
standing  in  loco  parentis  has  a  right  to  maintain  an  action  for 
seduction.^ 

§  1896.  Mother,  Action  by. — Under  statutory  provision, 
such  action  may  be  maintained  by  a  mother  keeping  a  boarding- 
house  on  her  separate  account,  though  the  father  be  living  at 
the  time,  if  the  father  hr\s  abandoned  his  familj'.^ 

§  1897.     Nature  of  Action. — The  action  is  not  maintainable 

*  Greenwood  v.  Greenwood,  28  Md.  Dawes,  4  Cow.  412 ;  Lipo  v.  Eisenlerd 
869.  Sli  N.  Y.  229. 

*  Sutton  V.  HiifTman,  3  Vroom,  58;         ^  Briirgs  v.  Evans,  5  Ired.  16;  Hewit 
Lippiv   Eisenlerd,  32  N.  Y.  229.  v.   Prime,  21    Wend.  79;     Mnrtin    v. 

'  Hnmilion  V.  L'lmax,  2t>  Barb.  615;  Pavne,   9  Johns.  387;  Api>le<rHte    v. 

S.  C  6  Abb.  Pr.  142.  Kuble,  2  A.  K.  Marsh.    128;  Gillet  v. 

*  See  a?j^c.  sec.  157;  see  also  Koenig  Mead,  7    Wend.  1U3 ;  Clark   v.  Fitch, 
V.  Notl,  8  Abb.  Pr.  884.  2  Id.  4o9. 

*Tlu)mpson  v.  Young,  51  led.  599;         ^  Bartley  v.  Riohtmypr,  4  Comst.  38 

see  form  No.  474,  post.  (4-^):  Bracy  v.  Kibl)e,  31  Bsrb.  273. 

«2  T.  R.  16t>:  Id.  4;  Irwin  v.  Dear-         »  Bndgley  v.  Deckpr.  44  Barh.  677; 

man,  11   East, '-'.S;  Manvell   v.  Thorn-  see   also   ante.  s*ic.   157,  aad  sec.  376, 

son,  2  Car.    &   P.    803 ;  Moraa    v.  Cal.  Code  C.  P. 


686  FORMS  OF  COMPLAINTS.  §   1898. 

by  a  parent,  as  such,  but  as  a  master  entitled  to  services  of 
child.i 

§  1898.  Step-father. —  A  step-father  can  not  sue  for  the 
Beduetion  of  his  step-daughter  while  living  in  the  service  of 
another  ^ 

§  1899.  For  Seduction  of  Plaintiffs  Daughter  or  Ser- 
vant. 

Form  No.  473, 

[T(TI.E.] 

The  plaintiff  complains,  and  alleges : 

I.  That  at  the  time  hereinafter  mentioned,  one  A.  B.  was  the 
servant  [and  daughter]  of  the  plaintiff. 

II.  That  on  the day  of ,  18. .,  at ,  the 

defendant,  well  knowing  the  said  A.  B.  to  be  the  servant  [and 
daughter]  of  the  plaintiff,  and  wrongfully  contriving  and  intend- 
ing to  injure  the  plaintiff,  and  to  deprive  him  of  her  assistance 
and  service,  did  wickedly  and  maliciously,  and  without  the 
privity  or  consent  of  the  plaintiff  [forcibly  and  airainst  the  will 
of  the  said  A.  B.,  abduct  her,  ot*  entice  and  persuade  the  said 
A.  B.  to  leave  the  residence  and  service  of  this  plaintiff,  aud 
did]  then  and  there  debauch  and  carnally  know  her. 

III.  That  by  reason  of  the  premises  the  said  A.  B.  became 
pregnant  and  sick  with  child,  and  so  remained  for  the  space  of 

months;  that  during  that  time  she  was  unable  to  attend  to 

the  dut  es  of  her  service,  and  the  plaintiff  was  thereby  deprived 
of  her  service,    and   was  obliged  to,    and  actually  did,  exjjend 

dollars   in  nursing   and   taking   care  of  her  in  her  said 

pregnancy   and  sickness,  and  was  otherwise  greatly  injured,  to 

bis  damage  dollars.^ 

[Demand  oy  Jitdgmknt.] 

§  1900.    For  Seduction,  by  Female  Seduced. 

Form  No.  474. 

[TlTLK.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  of  the  commission  of  the  grievances  here- 
inafter mentioned,  the  plaintiff  was  and  still  is  an  unmarried 
woman,  and  all  times  prior  thereto  had  been  chaste  and  vir- 
tuous. 

II.  That  on  the day  of  ,  18....,  at ,  the 

defendant,  with  force  and  violence,  made  an  indecent  assault 
upon  the   plaintiff   and  then  and  there   wickedly   seduced,  de- 

»  White  V  Nollis,  81  N.  Y.  405. 

«  BHriley  v.  Kicliimeyer,  4  Con, at.  88;  Bracj  V.  Ki^be,  31  Barb.  273, 

•  Tliis  is  from  Abbott's  Forais, 


§  1901.  VIOLATION  OP  PERSONAL  RIGHTS.  687 

debauched  and  carnally  knew  her,  •whereby  she  became  sick  and 
pregnant  with  child,  and  so  remained  for  a  long  space  of  time, 
to   wit,   for  the  space   of    nine   months ;    at  the   expiration  of 

which  time,  and  on  the  day  of  ,  18...,  she 

was  delivered  of  the  child  of  which  she  was  so  pregnant. 

III.  That  by  reason  of  the  premises,  and  in  consequence  of 
the  seduction  aforesaid,  the  plaintiff  has  suffered  greatly  in 
her  health,   and  became   sick,   and  was  prevented  for  a  long 

space  of  time,  to  wit,  for  the  space  of months,  from 

attending  to  her  ordinary  business  and  affairs,  and  was  greatly 
afflicted  in  body  and  mind,  and  has  been  put  to  great  expense 
for   medical   attendance   and   nursing,  and  has  been   otherwise 

greatly  injured,  to  her  damage  dollars. 

[Demand  ov  Judgment.] 

§  1901.  Statute  of  Limitations. — The  statute  of  limita- 
tions does  not  commence  to  run  against  the  right  of  action  for 
the  seduction  of  a  minor  until  she  attains  her  majority.* 

1  Morrell  v.  Morgan,  8  West  Coast  Rep.  683. 


lAW  LIBRARY 

tJNTVERglTY  OF  CALIFORNIA 

^OS  ANGKTES 


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